In writing the opinion for the Supreme Court in the travel ban case, Chief Justice John Roberts had to decide what to do with Donald Trump’s many statements laying bare his discriminatory reasons for adopting the executive order. Although other analysts say that the Court “balanced” or engaged in “weighing” the president’s comments against the putative national security reasons for the policy, we don’t see it that way. In fact, we don’t know what balancing or weighing religious animus would even look like. Instead, what the Chief Justice did was recite a series of the President’s most outrageous statements and then erect an analytic framework that allowed the Court to overlook them. The Court’s framework is a radical one.

New twist in “plenary power” doctrine

The disquieting nature of the decision is its novel standard for evaluating the constitutionality of an immigration measure like the travel ban. The Court’s standard, in essence, is that even when an unconstitutional motive for a policy exists (like anti-Muslim animus), if there is also a plausible justification for the action, and the text of the order is neutral on its face, then the policy is valid.

Many commentators criticized this aspect of the decision for continuing the Court’s embrace of the so-called “plenary power” doctrine, which purports to give enormous deference to the political branches’ immigration policies. The Court’s approach, however, marks a departure from the past, not continuity with it. To see this move, it is crucial to understand how the plenary power doctrine has been applied historically. In the past, the Court has invoked the doctrine in upholding immigration policies that might have been upheld even outside of the immigration context, due to the weak constitutional protections of the time.

As one of us explained on Just Security when the travel ban was first announced:

[W]hat is too-often overlooked about [plenary power] cases is when they were decided: each of them was decided during a constitutional era when such policies were often accepted as a matter of domestic law as well. Chae Chan Ping was decided seven years before Plessy v. Ferguson, which upheld Jim Crow segregation and birthed the infamous jurisprudential principle of “separate but equal.” Harisiades was decided in 1952, a period when First Amendment protections were much more watered down—and when communist party members were not infrequently criminally prosecuted. And Fiallo was handed down in the mid-1970s, during the nascent phase of the Court’s sex equality jurisprudence, when a number of domestic laws that discriminated on the basis of sex were upheld by the Supreme Court. …

In short: The Supreme Court has never upheld an immigration policy that openly discriminated on the basis of race or religion during a period of constitutional history when such a policy would have been clearly unconstitutional in the domestic context.

On Tuesday, the Court appears to have done what we previously thought unthinkable: to hold that, even if we know that an immigration policy was motivated by blatant official animus against a religion, the policy should be sustained so long as the government proffers some rational national security basis for it. In a non-immigration context, a policy that the President has defended with clear disdain for Muslims and Islam would almost certainly be subject to exacting scrutiny, even if neutral on its face, because of the chief decision-maker’s discriminatory intent. Here, the Court acknowledges (without adjudicating) that the plaintiffs allege that the “primary purpose” of the Executive Order was religious animus. Yet the majority concludes that the policy is permissible because evidence can be mustered to show an additional purpose related to national security. It’s almost as if Donald J. Trump and his litany of statements didn’t exist; the President, instead, is an abstraction sitting atop an ordinary national security bureaucracy that scrutinizes the world for real threats and adopts policies tailored to meet them.

In articulating its standard of review, the Court essentially admits that the policy could very well be based on unconstitutional grounds, but concludes that this fact is irrelevant so long as a separate and additional non-illicit reason for the policy is available.The Court will strike down immigration policies only if they “lackany purpose other than a ‘bare … desire to harm a politically unpopular group.’” The Court will  “uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”  After laying out this weak standard of review, the Court goes on to apply that review without even once referring back to the President’s discriminatory statements that it has already recounted and that Justice Sotomayor powerfully assembles in her dissent.

Compare this framework with the canon of anti-discrimination constitutional cases. Normally, the existence of discriminatory intent is what moves the inquiry out of rational basis review and triggers more heightened scrutiny of the decision-making process. The Court’s travel ban opinion flips that analysis on its head. Once the Court identified a plausibly legitimate basis for the travel ban, that was the end of the inquiry.

Imagine the Court saying “because there is persuasive evidence that the felon disenfranchisement law adopted by the Alabama constitutional convention in 1901 has a legitimate grounding in punishment and deterrence, quite apart from any racial hostility, we must accept that justification.” Such a statement would be shocking. And we know that the Court has held exactly the opposite, striking down Alabama’s 1901 felon disenfranchisement law because it was motivated by racial animosity, just a few years after the Court had held that felon disenfranchisement policies in general had both a legitimate basis and constitutional sanction. Yet that is what the Court’s doctrinal approach in the travel ban decision would require.

Now the Court could have just said that the evidence in the record did not actually show that the travel ban was in fact motivated by religious or racial animosity. But, and this is an incredibly important point about which there should be no confusion: the Court did not take that route. Instead, the Court refused to even evaluate evidence of invidious intent. Once it identified a plausible legitimate basis for the travel ban, its inquiry was at an end with no consideration of the legal significance of the President’s statements.

Implications (and non-implications) for other immigrants’ rights cases

While the Court’s new standard is more radical than even the plenary power understood in context, it is important to recognize that it by no means should be assumed to apply to other immigrants’ rights cases–despite what some commentators have suggested. The Trump administration will certainly tout the decision in ongoing litigation over the administration’s policies concerning the detention of immigrant families seeking asylum, concerning access to abortion by detained immigrants, and so on. But it is too hasty to think the decision applies in any of those circumstances.

There are two reasons for this. First, the travel ban litigation was profoundly affected by the fact that it was a case involving questions of motive and proof. Whatever one thinks about the radical standard of review erected by the Court, it is clear that, even in ordinary anti-discrimination jurisprudence, such claims are incredibly difficult to win. Thus, it remains possible that other sorts of claims–like facial sex classifications in immigration law’s family reunification provisions that treat mothers differently than fathers–could be treated differently by the Court despite its travel ban precedent. (This distinction, between facial classifications and facially neutral policy, is probably the only way to make any sense of the Chief Justice’s otherwise baffling assertion that the constitutional question concerning the travel ban has nothing to do with the constitutionality of Japanese American internment.)

Second, the Court’s exceptional deference is reserved for a single class of cases: cases concerning “immigration policies” (or perhaps immigration policies implicating national security). The doctrinal approach is irrelevant to other cases, even if those cases involve the rights of noncitizens. This is important: the Court’s plenary power doctrine does not stand for the proposition that extreme deference is due because noncitizens lack constitutional rights. In fact, the travel ban litigation itself had nothing to do with the rights of noncitizens. It concerned the First Amendment rights of citizens living in the United States. In short, Hawaii v. Trump’s radical approach is irrelevant to any case not categorized by the Supreme Court as an “immigration policy” case.

In other words, a threshold question for any litigation is whether the plenary power doctrine even applies. That question is generally resolved by whether a court deems the measure to involve the political branches’ exercise of immigration control (such as delineating the selection criteria for admission into the country).

This means that a lot turns on how we decide which cases count as immigration policy cases, and which do not. One of us (Adam) argued several years ago that there is no coherent way for the courts to decide which cases go in which box. Cristina and Ryan take the view that the existing cases do provide for a more coherent classification into the two separate areas of law. But we all agree that the Supreme Court has already itself concluded that many policies concerning the rights of noncitizens are not subject to ordinary plenary power analysis.

Immigration detention is among the most important examples of the Court concluding that a policy concerning noncitizens is not subject to plenary power deference. This is profoundly important, because it has been clear since the early twentieth century that the Due Process Clause restrains the government’s treatment of persons, no matter their citizenship. Thus, way back in 1903 the Court held that Kaoru Yamataya, whom the government argued had clandestinely entered the United States just a few days before she was taken into custody, was entitled to due process before she could be deported.

Yesterday’s decision by U.S. District Court Judge Dana Sabraw ordering children to be reunited with their parents, and condemning the government’s actions at the border as a mockery of due process, reflects this long-standing approach by the Supreme Court–an approach that should be  untouched by the travel ban opinion’s plenary power framework. In the final analysis, Hawaii v. Trump’s rejection of the challenge to President Trump’s travel ban, radical as it is, does not give this President, or any other, unfettered authority over immigrants’ rights issues–even many issues that are closely connected to the policing of the border.

Photo by Melissa Bender