SCOTUS finds travel ban legal; judicial review to continue

The US Supreme Court narrowly upheld as Constitutional the 3rd and most limited version of President Trump’s temporary travel ban, but rejected the administration’s claim it will ever be beyond judicial review. 

The Supreme Court’s 5-4 ruling upholding version 3 of the administration’s “travel ban” for citizens of 7 countries, including 5 majority Muslim countries rests entirely on one idea—that the Executive has “broad discretion” in areas of foreign affairs and national security. What the 5 Justices ruling with the majority appear to have ignored is that the Constitution affords no powers to the President or to the Executive that are not explicitly granted in Constitutionally compliant law.

The Constitution does grant the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur” and to name ambassadors and other officers necessary for the conduct of foreign affairs. It does not, however, grant the President any power to strip due process rights from some people while giving them to others, or to establish any prohibition on entry into the United States.

In this sense, yesterday’s 5-4 Supreme Court ruling in the case of Trump v. Hawaii expands presidential power in significant ways, which could be injurious to the civil liberties of citizens on American soil.

For instance:

• A citizen of the United States with relatives in France would expect their relatives to be able to travel to the United States, at least as tourists, and possibly to apply for a visa or for permanent residency. That citizen should expect the family members in question would receive a fair hearing and be considered on their own merits, by federal officials, as required by law.
• On the other hand, a citizen of the United States with relatives in Libya—who should expect the same treatment, given that due process cannot be denied to any person and that equal protection of the law applies to all people—must now expect that their relatives can be prohibited from entering the United States, even as tourists, and possibly barred for life from receiving a fair hearing.

The Trump v. Hawaii ruling directly undermines the Constitutional right to due process of all American citizens, by putting at risk the due process rights of some. The majority opinion appears to implicitly grant the President of the United States if not the power then at least the judicial precedent that serves to allow for unilateral stripping of basic Constitutional protections for some people. In the sense of American Constitutional law, this amounts to granting the President the power to create different classes of people before the law.

That power cannot exist under the Constitution and its Amendments, as written. As such, the substance of this ruling risks becoming a serious threat to established civil liberties standards, and a dangerous empowerment of a President who has specifically said he will not recognize due process and who has claimed “unreviewable” powers.

It is important to note that the Court does not grant any claim of unreviewable powers. The majority opinion, written by Chief Justice John Roberts, recognizes that:

We agree that a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact.

The majority highlights that the Executive Order in question can be Constitutional only if exemptions can be issued in such cases.

The dissenting opinion, written by Justice Stephen Breyer, notes that:

The Pars Equality Center identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria.

In essence, the Order might or might not be crafted in a way that could abide by Constitutional constraints, but those provisions would appear to be just window dressing, as the administration has not followed the law by its own practice. Highlighting the case of a Yemeni girl diagnosed with cerebral palsy, and whose doctors said she could not survive in Yemen, Breyer described the administration’s repeated refusal to grant her and her family a waiver to enter the United States to receive medical treatment.

Breyer writes:

Though this is but one incident and the child was admitted after considerable international attention in this case, it provides yet more reason to believe that waivers are not being processed in an ordinary way.

Justice Sonia Sotomayor wrote, in her own separate dissenting opinion, that for:

individuals with foreign relatives affected by the entry suspension … prolonged separation from family members [is one of] a multitude of harms that are not compensable with monetary damages and that are irreparable.

Under the Constitution of the United States, the President is not empowered to impose irreparable harm on individuals and families. Due process always supersedes any claim to executive power, and “cruel and unusual punishment” and unequal treatment are explicitly forbidden.

Perhaps for this very reason, Justice Anthony Kennedy wrote a concurring opinion which has widely been described as “hostile” to President Trump’s own intentions and seemingly routine claim to “unreviewable” powers. In his concurring opinion, Justice Kennedy—who is often seen as the “swing vote” between the four conservative and four progressive Justices on the Court—writes:

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.

Justice Kennedy is clearly concerned this fact is not well understood by today’s most senior Executive Branch office-holders. He is also concerned, it would seem, that the majority finding—that the third Executive Order barring entry to citizens of select countries can be interpreted, as written, to abide by the Constitution—could be interpreted erroneously to afford undue powers to the Executive.

Kennedy goes on to say, in what reads as a stinging comment on our current political moment:

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.

Given the majority ruling finds that the Executive Order is Constitutional only insofar as it provides real opportunities for waivers to protect the rights of American citizens, including their right to assemble with family, in the place of their choosing (here in the United States), Justice Kennedy’s concurrence makes clear that any lower court to review the legality of a given case must find against the administration, if it violates the Constitutional liberties of any American.

Interestingly, in response to the plaintiffs’ assertion that President Trump has repeatedly said on Twitter that the intent of this Executive Order (and the two previous iterations) is a “Muslim ban”, Chief Justice Roberts writes that the Court is barred by precedent from interpreting the psychology of public officials.

On the one hand, this is a nod to Roberts’ long-standing assertion that judges should rule on matters of law, not on personal interpretations of the behavior of individuals. On the other hand, it also suggests that the Roberts Court will not look well on claims by the White House that Donald Trump can issue official orders via Twitter. If this holds, it would have the effect of greatly constraining President Trump from his well-documented efforts to circumvent official procedure by making unilateral declarations via Twitter.

It is also worth noting that Justice Kennedy’s concurrence includes this critical phrasing:

Whether judicial proceedings may properly continue in this case … is a matter to be addressed in the first instance on remand.

What this means is further lawsuits will surely follow, and some of these may—depending on how the lower courts rule, and which Constitutional issues are at stake—make their way to the Supreme Court for further review. In all, at least 6 of the 9 Justices—the four dissenters along with Kennedy and Roberts—view ongoing litigation of the Constitutionality of the administration’s enforcement of this temporary, partial non-entry order as likely and appropriate.

Kennedy argues it is all 9 Justices who share this view, given the other 3 also signed onto Roberts’ majority opinion.

This does not guarantee that no person’s Constitutional rights will be infringed; nor does it override the fact that the Supreme Court appears to have issued a ruling in which discriminatory treatment not explicitly permitted by the Constitution now becomes possible. On both of these counts, the majority opinion is of real concern to anyone who prizes civil liberties and Constitutional rights over deference to the Executive.

But to report accurately on the state of the law with regard to President Trump’s claim of unreviewable and/or discriminatory powers:

• The Court has made clear, from various perspectives, in four written opinions, that the Judiciary should continue to review the legality of the administration’s behavior on this matter.
• Anywhere there is a Constitutional rights violation on these matters, litigation should ensue, and the federal courts should protect the rights of any and all against executive overreach.

The Trump v. Hawaii ruling is not, strictly speaking, a victory for President Trump’s professed claim of an unreviewable power to discriminate. It does call the inviolability of certain Constitutional protections into question. But, importantly, it also keeps the door open to further review and even potential reversal, pending further judicial examination of the administration’s behavior.