The Rule of Law Prevails in the Travel-Ban Case

The judicial “resistance” to President Trump suffered a well-deserved defeat in the Supreme Court’s “travel ban” ruling, Trump v. Hawaii. At issue was Mr. Trump’s order limiting entry to the U.S. of nationals from eight (now seven) countries that are unwilling or unable to cooperate sufficiently in U.S. antiterrorist screening efforts. The plaintiffs challenged the order on several grounds, arguing that it exceeded the president’s authority and was animated by anti-Muslim bias, violating the First Amendment. (Six of the eight covered countries are mostly Muslim.) The court upheld Mr. Trump’s order 5-4.

Whatever one thinks of the travel ban as policy, the ruling is an important victory for the rule of law. Federal trial and appellate courts have persistently enjoined Mr. Trump’s orders, defying clear Supreme Court precedent supporting his power to limit the entry of aliens. The decision has removed all doubt that the president’s orders are lawful under both the Immigration and Nationality Act and the Constitution.

The justices made short work of the plaintiffs’ statutory claims, affirming that the Immigration and Nationality Act’s plain language gives the president the power to deny “any aliens or any class of aliens” entry to the U.S. whenever he finds that letting them in “would be detrimental” to U.S. interests. This provision, Chief Justice John Roberts wrote, “exudes deference to the President in every clause.” Mr. Trump’s proclamation, the justices concluded, was “well within this comprehensive delegation.” The court also concluded that a “searching inquiry” into the president’s justifications for the order, such as the lower courts in this case conducted, is inconsistent with both the statute and “the deference traditionally accorded the President in this sphere”—namely “international affairs and national security.”

The plaintiffs’ constitutional arguments fared no better. They asserted the order was motivated by a personal “animus” toward Islam and therefore violated the First Amendment’s Establishment Clause. Although the ban includes North Korea and Venezuela, the plaintiffs argued that it disfavored Islam. As evidence of animus, plaintiffs cited Mr. Trump’s various statements during the campaign suggesting that Muslims should not be permitted to enter the U.S. “until our country’s representatives can figure out what is going on.”

The court readily distinguished this case from the domestic application of the Establishment Clause. When presented with “the typical suit involving religious displays or school prayer,” courts engage in probing scrutiny of the motivations and effects of government actions. If there is evidence of official animus toward believers (or nonbelievers), that usually dooms the government’s defense.

But Trump v. Hawaii involves “a national security directive regulating the entry of aliens abroad.” The Constitution vests the determination of whether, when and under what conditions aliens can enter the United States in Congress and the president. The courts’ proper role in immigration, and in foreign policy more broadly, is sharply limited. Many presidential actions are not subject to judicial review, and judges give substantial deference to those that are. The court traditionally upholds presidential authority to exclude aliens from entry so long as the president articulates a “facially legitimate and bona fide” reason. The justices reaffirmed that standard.

At the government’s invitation, however, they also engaged in an unusual—and not precedent-setting—hypothetical consideration of the travel order under the more stringent, though still highly deferential, “rational basis” standard. The question here was whether there was “a justification independent of unconstitutional grounds.” The high court found the justification in the order’s stated purpose: “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” The ruling noted that the order did not mention religion, reflected “the results of a world-wide review process,” and affected only 8% of the global Muslim population. It also pointed out that all of the designated countries had been identified as national-security risks by Congress or past presidents. Even if there was animus—a question the majority did not resolve—that would not be fatal so long as that independent justification exists.

Finally, the justices took the opportunity to overrule Korematsu v. U.S. (1944), which had permitted President Franklin D. Roosevelt’s internment of Japanese-Americans during World War II. Mr. Trump’s order has often been compared to that shameful episode. But FDR imprisoned American citizens without due process and for no reason other than their ethnic heritage. Mr. Trump’s order applies only to aliens outside the U.S., who have no constitutional right to enter the country.

The four liberal justices dissented, concluding that Mr. Trump’s statements about Muslims were sufficient to constitute an impermissible religious bias that should invalidate the order, as if it were a domestic Establishment Clause case. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, also brushed aside the court’s precedents deferring to the president’s judgment on international affairs and foreign policy. The Sotomayor dissent disputed Mr. Trump’s policy conclusions about the dangers of inadequate vetting, citing the views of various “national-security officials” from previous administrations. The dissenting justices’ reliance on the views of former officials is a radical departure from constitutional norms.

Justice Clarence Thomas raised an important point in his concurring opinion. He challenged the growing trend in which individual district court judges—whose jurisdiction extends only to a single state or part of a state—issue “universal” injunctions that purport to apply nationwide. He questioned the constitutionality of this practice and indicated that if it continues, the court will have to stop it.

In upholding Mr. Trump’s order, the Supreme Court has reaffirmed the basic principle that judges must stay their hands when evaluating the discretionary decisions of the president or Congress in areas the Constitution reserves to the political branches.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department in the Reagan and George H.W. Bush administrations.



  • Lee Harle October 6, 2018 at 3:05 pm| Reply

    Dear Messrs. Rivkin and Casey,

    I have great respect for your logical minds, and have been a fan for years, always enjoy reading your WSJ articles. I’m writing to ask you to author an article debunking the notion that overturning Roe v. Wade would automatically make abortion illegal in this country. From what I’ve read (I’m an electrical engineer by training, not a jurist), experts on both the left and right agree that Roe is an example of very poor judicial reasoning, and at the time, the states were well on their way to deciding on the legality of abortion, one state at a time. Some of the thinking concludes that the Supreme Court should have declined to hear Roe, thereby allowing the American people to decide the matter at the ballot box at the state level, and not in the courts. Even now, states are deciding issues such as the legality of late term abortion, so the process continues in spite of Roe. If I’m correct in my interpretation (please correct me of I’m not), then overturning Roe would revert the process back the state legislatures. Is it possible to make this argument from a constitutionalist position? If so, it could be the first step in removing this very volatile issue from national politics. Thank you, and I hope to look forward to an article.

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