The Supreme Court Rises Above
Donald Trump is so polarizing that a test of his Presidency is whether American institutions can keep their bearings and hold to principle despite the passions of the moment. Five Supreme Court Justices did the country a service on Tuesday by sticking to the Constitution and rule of law on executive power rather than succumb to the temptation to rebuke an unpopular President’s dubious policy.
A 5-4 majority upheld Mr. Trump’s third “travel ban” from 2017 that restricted entry to America from eight countries. The ban in our view isn’t necessary, and the Court made no judgment on the policy merits. But Chief Justice John Roberts and four conservative Justices found that the ban falls well within the President’s core national-security powers. This is less a victory for Mr. Trump than for the ability of future Presidents to defend the country.
The initial travel ban was an ill-conceived mess, but by the third try the Administration had done its due diligence. The government conducted a painstaking review of countries’ vetting procedures, information-sharing and security risks. Homeland Security tailored travel restrictions from the eight countries—Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia—based on these considerations.
The President directed Homeland Security to review the restrictions every 180 days—Chad has since been removed—and establish a process so citizens from the covered countries can seek waivers. Mr. Trump’s 12-page order “is more detailed than any prior order a President has issued,” the Chief notes.
Hawaii claimed the President’s authority is limited to “temporarily” halting the entry of a discrete group of foreigners engaged in harmful conduct, but this limit is nowhere in the law. Past Presidents including Barack Obama and Bill Clinton “have repeatedly suspended entry not because the covered nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments,” the Chief Justice writes. The 43 suspension orders issued prior to the litigation did not specify a precise end date.
The plaintiffs fall back on the charge that the order violates the Constitution’s Establishment Clause, which prohibits the government from discriminating based on religion. They flog Mr. Trump’s statements on the campaign trail calling for a “total and complete shutdown of Muslims entering the United States.”
But judges must rule on actual policy, not a candidate’s campaign statements. The order makes no mention of religion and thus is “facially neutral,” the Chief writes. Under the Court’s long-standing precedents, the policy must therefore be accorded deference as long as it has a rational basis—as this one does.
In their dissent, Justices Sonia Sotomayor and Ruth Bader Ginsburg note that some former government officials disagree with the necessity of the President’s order. But as the Chief reminds his colleagues, “we cannot substitute our own assessment for the Executive’s predictive judgments on such matters.”
Chief Justice Roberts also upbraids the two liberal dissenters for the cheap shot of hauling in the Court’s regrettable Korematsu decision upholding internment camps for Japanese-Americans during World War II. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” the Chief writes. A “forced relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.”
In a separate dissent, Justices Stephen Breyer and Elena Kagan almost seem to be going through the legal motions so they don’t have to join the majority and hand a victory to Mr. Trump. And in a pointed concurrence, Justice Anthony Kennedy essentially delivers a lecture to political leaders—that means you, Mr. Trump—to respect such constitutional liberties as freedom of religion.
No doubt the five Justices will be vilified as abettors of Mr. Trump, but someone had to tell judges on lower courts that they can’t abandon the Constitution to settle political scores. The majority’s ruling protects the separation of powers that is fundamental to ordered liberty.
Appeared in the June 27, 2018, print edition.