Donald Trump’s Muslim travel ban win may be good law but it’s bad policy

The US Supreme court has handed President Donald Trump a major victory in upholding his so-called Muslim travel ban.

While the ruling is defensible given the high deference accorded to the President in national security matters, the judgment potentially undermines America’s longstanding constitutional tradition of religious tolerance.

It also hints at weaknesses in the policy rationales for the ban and highlights risks from Mr Trump’s communication style.

What is the ‘Muslim’ travel ban?

Mr Trump issued Executive Order No. 13769 (EO-1) shortly after taking office. EO-1 barred nationals from seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen — from entering the US. EO-1 was rendered inoperative by the courts.

Mr Trump issued order EO-2 with some modifications. This was also injuncted by the courts.

On September 24, 2017, after a worldwide review, Mr Trump issued Proclamation No. 9645, to improve vetting procedures based on “public safety threats”. It imposed entry restrictions on persons from eight countries — Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. These had inadequate systems for identity and security-verification.

Prior to the order, DHS conducted a global assessment and 16 countries presented national security concerns. Another 31 countries were “at risk”. Diplomatic initiatives resulted in many countries subsequently improving their practices but the eight countries remained deficient.

Mr Trump issued the Proclamation deeming restrictions were necessary to “prevent the entry of those foreign nationals”; “elicit improved … protocols … from foreign governments”; and “advance [the] foreign policy, national security, and counter-terrorism objectives” of the United States.

Green Card holders and asylum grantees were exempted; case-by-case waivers were also allowed.

This Proclamation was challenged and a nationwide injunction was issued. On appeal, the 9th Circuit Court also ruled against the government. The US Supreme Court then took the case.

Media player: “Space” to play, “M” to mute, “left” and “right” to seek. 

Immigration act gives Trump ‘broad discretion’

The 5-4 decision supports the government. Chief Justice John Roberts authored the majority opinion on behalf of himself and justices Clarence Thomas, Anthony Kennedy, Samuel Alito and Neil Gorsuch.

The Chief Justice said the “plain language [of Immigration Act] … grants [Mr Trump] broad discretion to suspend the entry of aliens … The President lawfully exercised that discretion based on his findings — following a worldwide, multi-agency review — that entry … would be detrimental to the national interest.”

The majority noted section 1182(f) “exudes deference to the President … [to make] the decisions whether and when to suspend entry; whose entry to suspend; for how long; and on what conditions”.

Chief Justice Roberts said Mr Trump’s “comprehensive evaluation” of every country’s compliance with risks was sufficient, and his 12-page Proclamation “more detailed than any prior order a President has issued under Section 1182(f)”.

He noted previous presidents, including Barack Obama, had barred foreigners from entering the US not because they “engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with US foreign policy interests”.

So, the court’s broad conception of executive power led it to uphold the Proclamation.

Anti-Muslim statements not considered

The Supreme Court also didn’t believe that the entry ban violated the US Constitution’s Establishment Clause. Petitioners had pointed to Mr Trump’s anti-Muslim statements.

Chief Justice Roberts didn’t buy that argument:

Protesters hold signs reading "Muslim is American" at Miami airport Photo: Donald Trump’s travel bans have sparked widespread protests. (AP: C M Guerrero)

“The issue before us is not whether to denounce the statements …[but] significance of those statements in reviewing a Presidential directive….”

He was uneasy but merely said: “We express no view on the soundness of the policy.”

The facially neutral rationale was all that mattered.

Clearly, Mr Trump’s modification of the initial EO saved him. The Proclamation was carefully drafted, included non-Muslim countries, and was based on a national security assessment.

Given these facts, the Court’s decision makes legal sense.

The question is whether that deference to a “facially neutral” proclamation is deserved when there is contrary evidence.

Trump’s pro-Christian stance

Justice Sonia Sotomayor’s dissent suggests it is not: “The policy now masquerades behind a facade of national-security concerns …[and] repackaging does little to cleanse … [it] … of the appearance of discrimination” created by Mr Trump’s words.

Justice Sotomayor referenced Mr Trump’s formal statement, as a presidential candidate, calling for “a total and complete shutdown of Muslims” entering America.

She noted that even after becoming President, Mr Trump had expressed a preference to give “Christians … priority for entry as refugees”.

She wrote that because of “the overwhelming record evidence of anti-Muslim animus, it simply cannot be said that the Proclamation has a legitimate basis”.

Crucially, the majority does not look at the substance of the President’s “finding” — instead it defers to the executive branch. Justice Sotomayor attacked that deference because it appeared that the comprehensive assessment of all countries was a mere “17 pages” — window dressing.

Statue of Liberty Photo: Mr Trump’s ban has survived and his message is that certain people are not welcome in the US. (Flickr: Vincent)

Religious tolerance a bedrock principle

In conclusion, while the majority opinion is defensible as correct law on a narrow view of judicial review, there are troubling implications.

First, is it wilful ignorance to discount Mr Trump’s statements against certain nationalities?

Second, is the ban truly neutral when the President claims the ban was redrafted to make it “politically correct?”

Third, does the ban really advance national security when other countries that pose national security risks are not included?

For instance, terrorists have originated from Uzbekistan, Kyrgyzstan and Bangladesh. These omissions suggest that the list may not have been accurately compiled.

Fourth, religious tolerance is a bedrock principle of the US Constitution and the Supreme Court has repeatedly emphasised that the government cannot “show hostility” to religious views.

Given that it would be naive for any Proclamation to explicitly state hostility to Muslims, shouldn’t clear contextual statements be entitled to some weight?

Finally, the rhetoric of hostility to certain nationalities may breed hatred and engender violence — undermining the policy’s national security goals.

These questions remain to be answered.

For now, Mr Trump’s ban has survived and his message is that certain people are not welcome in the US.

source: abc