Contrary to Popular Belief, the Court Did Not Hold that the Travel Ban is Lawful—Anything But

Which Makes Its Ruling, Justice Kennedy’s Deference, and the President’s Enforcement of the Ban Even More Indefensible

Cross-posted at Balkinization.

Not surprisingly, most early reports of the Supreme Court’s decision last Tuesday in Trump v. Hawaii dramatically pronounced that the Supreme Court had declared President Trump’s “Travel Ban III” to be “valid” or “lawful” or “constitutional.”  The President himself excitedly tweeted:  “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”

Don’t believe the hype.

In fact, not a single Justice on the Court decided—or even suggested—that Proclamation 9645’s exclusion of entry of nationals from five Muslim-majority countries (Iran, Libya, Somalia, Syria and Yemen) is lawful.  More importantly still, five of the Justices actually concluded that it violates the First Amendment (although, as I’ll discuss shortly, Justice Kennedy inexplicably chose to be a bit indirect, and sheepish, about that conclusion).

But if that’s the case—if the only five Justices who opined on the merits concluded that the Travel Ban is unconstitutional—then why did the Court rule for Trump?

Because the Court applied a highly deferential standard of review.  A 5-4 majority of the Justices held, in effect, that even if the Proclamation is unconstitutional there’s nothing the Court can do about it.

That disposition, as I’ll explain, is indefensible on a couple of grounds—(i) that the Court does not adequately defend its deferential posture and, more importantly, (ii) that the Travel Ban fails even the “rational basis review” the Court applied, because its only effect is to exclude entry into the U.S. of individuals who can demonstrate that they are not dangerous (or otherwise inadmissible).  Accordingly, the Travel Ban is “inexplicable by anything but animus” (slip op. at 33 (quoting Romer v. Evans)), and therefore is unconstitutional.

The majority’s resolution is especially unfortunate because this is a case in which the Court’s conclusion—that the President conceivably might have promulgated the Travel Ban for independent reasons of national security—is belied by a fundamental thing that virtually everyone knows (and that the Court does not deny): namely, that the Travel Ban would not exist but for its foreseeable effect in excluding Muslims from entry, and the fact that it makes good on the President’s campaign promises to his constituency that he’d impose a “total and complete shutdown of Muslims entering the United States” because “we can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.”

It’s especially disappointing that Justice Kennedy went along with this charade, because his vote to reverse the preliminary injunction—the vote that decided the case—betrayed each one of the core principles that Jack Goldsmith rightly describes as the pillars of his jurisprudence over the past 30 years and his (desired) legacy:  honoring the dignity of all persons; preserving liberty; and enshrining a “robust conception of judicial power” to check the constitutional errors of political actors.  (More on this below.)

Make no mistake, however:  As Justice Kennedy himself unambiguously signals in his separate opinion, the President is, indeed, “disregard[ing] the Constitution and the rights it proclaims and protects” (Kennedy op. at 1), and thereby violating his oath of office, by continuing to enforce the Travel Ban.  And those officials who are assisting him in doing so, or advising him that he may continue to do so despite knowing full well that there is no national security basis for the ban and that it therefore is unconstitutional for the reasons expressed by a majority of the Court in Trump v. Hawaii, are violating their own oaths, and ignoring the “imperative . . . to adhere to the Constitution and to its meaning and its promise” (id.).  This case thus illustrates an important lesson that’s often overlooked: The political branches have a duty to comply with the Constitution even in cases where the Court is, for institutional reasons, unwilling or unable to enforce constitutional norms.

* * * *

1. A Court Majority Rejected the Mythical Plenary Power Doctrine and Held that the First Amendment Bars Religious Discrimination in the Admission of Foreign Nationals

Let’s start with a very important and remarkable thing about Trump v. Hawaii that most reports and observers have, perhaps understandably, overlooked in the tumult of the past few days:  A majority of the Court rejected, for the first time, the “strong” version of the so-called “plenary power doctrine” of immigration law, i.e., the proposition that the political branches are wholly unconstrained by the Constitution in choosing who can and cannot enter the United States.

This view, according to which the political branches (or Congress, at least) may even exclude aliens of a particular race or religion from the United States, is often invoked by lower courts, and has (unfortunately) become a staple of many law school courses.  It even has support in a Supreme Court dictum from 1903, in the case of Yamataya v. Fisher:  “Congress may exclude aliens of a particular race from the United States.”  The Court pronounced that dictum, however, more than 50 years before it declared (in Bolling v. Sharpe (1954)) that the Fifth Amendment prohibits the federal government from engaging in race discrimination in any context, foreign or domestic.  And until this week, the post-Bolling Court had never opined on the question of whether the political branches may use race or religion as a criterion for entry.  (As Adam Cox wrote here last year, “[d]on’t let an immigration or constitutional law scholar tell you otherwise.”)[1]

It is noteworthy that in the Travel Ban litigation not even the Trump Administration argued that actual discrimination against Muslims would be constitutional.  Indeed, then-Acting Solicitor General Wall acknowledged, during oral arguments respecting an earlier iteration of the Travel Ban (see approx. minutes 29-31), that an actual ban on entry of Muslims would “run into the . . . constitutional limit on legitimacy,” even if the President made a finding that such a ban served national security purposes.

As soon as the Court decided Trump v. Hawaii, however, some observers assumed that the Court had endorsed the strong plenary power doctrine under which the political branches’ power to deny entry is constitutionally unbounded.  Eugene Volokh, for example, wrote that “the core legal principle behind the majority’s constitutional position” was that the federal government “may pick and choose which foreigners to let into the country . . ., even based on factors—political beliefs, religion, and likely race and sex—that would normally be unconstitutional. . . .  [T]he government has essentially unlimited power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights.”

Not so.  Indeed, that understanding gets Trump v. Hawaii exactly backwards.

Let’s start with the Chief Justice’s majority opinion.  As I’ll discuss further in Part II below, that opinion announced the Court’s holding that the judiciary has very “circumscribed” authority to evaluate whether the Executive has, in fact, violated the Constitution, and to enjoin such unlawful conduct—what is sometimes characterized as a weaker form of the “plenary power” doctrine.  What’s more, it’s certainly true that Roberts did not definitively hold that the First Amendment constrains entry decisions:  he merely suggested that the scope and operation of the Religion Clauses in this foreign affairs context is a “delicate issue[]” (p.29).  On the other hand, the Chief Justice confirmed the Court’s view, from Kleindienst v. Mandel (1972), that there are at least some (unspecified) grounds for exclusion that are not “legitimate” (p.32), a view that’s impossible to reconcile with the strong version of the plenary power doctrine.  (The implication of the Mandel case itself, for example, was that if the government had in fact denied Mandel a visa in order to prevent U.S. audiences from hearing what he had to say, that would not have been a “legitimate” ground, i.e., it would have been unconstitutional.)  Moreover, Roberts himself purported to distinguish the infamous DeWitt Exclusion Order No. 34 in Korematsu (p.38) primarily on the ground that it rested “solely and explicitly on the basis of race,” and thus was “objectively unlawful,” whereas Trump’s Proclamation is “facially neutral.”  And he opined that although President Trump’s statements about Muslims were not determinative of the case, even so the Court “must consider” them (p.29).  These signals are also inconsistent with the plenary power doctrine, and they offer reason to believe that even Chief Justice Roberts views the First Amendment as a constraint on the exercise of the admissions power, at least to some extent.

However one might read Roberts’s opinion however—and, as explained above, it’s at worst neutral on the question of whether the Bill of Rights limits admissions policies—what’s far more significant is that five Justices not only unequivocally rejected the plenary power doctrine that the Constitution does not constrain the political branches on questions of admission, but also concluded, in particular, that the First Amendment’s prohibition on discrimination on the basis of religious denomination governs the political branches’ decisions about who to admit into the country.

The four dissenting Justices, of course, would have held that the plaintiffs were likely to succeed on that theory.  (To be precise:  Justice Breyer would have remanded for further consideration of whether and to what extent the Executive branch is implementing the Proclamation in a way that would result in disparate treatment of Muslims.  In the final paragraph of his opinion, however (p.8), he effectively joined Justice Sotomayor’s opinion because the Court majority had rejected such a remand.  And, more to the point, Breyer specifically wrote (p.1) that “[i]f [the Proclamation’s] promulgation or content was significantly affected by religious animus against Muslims, it would violate the relevant statute or the First Amendment itself.”)

And Justice Kennedy makes five.  In his concurrence, Kennedy reasoned that if the Travel Ban were “‘inexplicable by anything but’ . . . animosity to a religion” it would be unconstitutional, and even suggested that there might be room for a judicial finding to that effect on remand (AMK op. at 1).  In this regard, he emphasized a point that’s often difficult to explain to law students trained in the case method and judicial review—namely, that the lack of judicial authority to check other actors (or, as here, a very weak variant of judicial review) does not mean that those actors are free to do what they wish, unburdened by constitutional constraints—to the contrary:

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.  The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do.

“Indeed,” Justice Kennedy continued, “the very fact that an official may have broad discretion, [or] discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”  [UPDATE:  As my former colleagues Alex Aleinikoff and Nina Pillard wrote 20 years ago in a closely analogous immigration context, “institutional limits on judicial review should be irrelevant to the political branches’ own constitutional calculus, since they do not share the judiciary’s institutional constraints.”]

And then there are the final two sentences of his concurrence—the final sentences Justice Kennedy (presumably) will write as a sitting Justice—which ought to be seen as the most significant part of Trump v. Hawaii in the decades to come.  In them, Kennedy announces that the constraints of the Religion Clauses do apply to the immigration setting at issue, i.e., to decisions about who to admit into the United States:

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.

This is a powerful, unequivocal rejection of what I’ve described above as the “strong” plenary power doctrine, and a ringing affirmation of the principle that the United States must not discriminate against people of a particular religion, “even in the sphere of foreign affairs.”  Most importantly, it’s the view of a majority of the Supreme Court . . . at least until August.

2. The Court’s Misguided Conclusion That the Travel Ban Satisfies “Rational Basis” Scrutiny

OK, so that’s the good news.[2]  But if the First Amendment prohibits the political branches from discriminating against Muslims when it comes to admissions, why didn’t the Court rule for the plaintiffs?  After all, it is obvious and virtually indisputable—the government didn’t even argue otherwise!—that Proclamation 9645 would not exist but for Donald Trump’s campaign promises to impose a “Muslim Ban,” and but for the fact that such a ban has a dramatic and foreseeable “disparate impact” on Muslims, i.e., it keeps out of the United States thousands of Muslims who would otherwise be permitted to enter.  Indeed, I’d wager that virtually everyone who has been paying any attention to the issue, including all nine Justices, would agree that those promises, and those foreseeable effects, were the “but for” causes of the Proclamation.  Notably, not a single Justice even hints that that might not be true—presumably because such a view would be so contrary to everything we know that it would appear ridiculous.

And so, if the case didn’t involve immigration and presidential claims of national security concerns, or if the Proclamation had discriminated against Muslims on its face, then the Court plainly would have declared that the Ban was unconstitutional on the ground that, as Justice Kennedy wrote in Church of Lukumi Babalu Aye, Inc. v. Hialeah, “the First Amendment forbids an official purpose to disapprove of a particular religion.”  See Hawaii slip op. at 26 (confirming that the “clearest command” of the Establishment Clause “is that the Government cannot favor or disfavor one religion over another” (quoting Larson v. Valente)).  Indeed, as Justice Sotomayor stressed in her dissent, just several weeks earlier the Court prohibited Colorado from enforcing a nondiscrimination order in Masterpiece Cakeshop based upon far less evidence of discriminatory intent on the part of one or two members of a state commission—evidence that, as I’ve explained, was probably not hostile to religion at all, let alone to one particular religion, and, most importantly, that could not possibly have had any impact on the state’s decision-making—in contrast to President Trump’s promise of a “Muslim ban,” without which it is inconceivable that the Proclamation would have issued.

Nevertheless, five members of the Court chose to apply a highly deferential standard of review to the Ban—as far from the Court’s posture in Masterpiece as one can imagine.  The decision to be so deferential to the President was based upon a combination of two things: (i) that the Proclamation “merely” has a disparate impact on Muslims, but does not facially single them out (thereby distinguishing it from the invalid order in Korematsu, which, according to Roberts, was “objectively” unlawful); and (ii) that the Proclamation involves questions of entry into the United States and is ostensibly concerned with national security threats.  Where a presidential action has both of those characteristics, the Chief Justice’s opinion suggests, only a “circumscribed judicial inquiry” is appropriate.

According to the Chief Justice (p.32), a form of “rational basis review” is the most a court can (or should) apply in such a case.  Roberts is at first a bit unclear about which type of “rational basis review” he means.  His citation to Railroad Retirement Board v. Fritz suggests that perhaps he’s referring to the most lenient form of judicial review, in which the Court will credit any conceivable legitimate and rational basis for the challenged state action, even if the Court is convinced that the actual facts are otherwise.  Yet he acknowledges that the Proclamation would not be constitutional if the government could not point to a “facially legitimate reason” for it, and thus he quickly clarifies that he’s applying what’s often referred to as “rational basis with teeth,” in which the Court will declare an action unconstitutional if “its sheer breadth is so discontinuous with the reasons offered for it” that it is “inexplicable by anything but animus” (quoting Romer).  (If there were any ambiguity about this, Justice Kennedy—the fifth vote—unambiguously represents that the Court has applied the Romer test (AMK op. at 1).)

Roberts states (p.32) that although the Court can “consider plaintiffs’ extrinsic evidence” (see also id. at 29 (Court “must consider” Trump’s statements)), it nonetheless “will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”

One significant problem with this forgiving standard of review is that Roberts doesn’t offer any compelling reason why the Constitution requires such extreme judicial deference in a case, such as this one, in which the evidence of impermissible motivation is so stark and compelling.  A bit later in the opinion (p.35), he quotes the old adage that “we cannot substitute our own assessment for the Executive’s predictive judgments” on matters of national security and foreign affairs, “all of which ‘are delicate, complex, and involve large elements of prophecy’” (quoting Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp.).  Extreme deference on such factual and predictive questions might make sense in some cases involving foreign affairs; but here, of course, everyone knows that the President did not, to say the least, make any such “delicate” or “complex” “predictive judgments”—indeed, as I’ll explain shortly, he made no judgments about threats from the excluded population, or other national security threats, at all.  Thus, as Richard Primus writes, “the rationale to which it [the Court] deferring is not the rationale that persuaded an expert to act.  It’s just a rationale that the expert’s lawyers figured would sound plausible to non-expert judges.  And the other branch is getting the benefit of deference because it is in general considered an expert on the topic, whether or not it is actually applying that expertise in the case at hand.”

Even if there were a good justification for the Court’s “rational basis” scrutiny, however, the point I’d like to emphasize here is that Trump’s Travel Ban doesn’t satisfy even that highly deferential standard of review.

“Because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility,” writes Roberts (pp. 33-34), “we must accept that independent justification.”  It’s here that Roberts make a critical category error.  The pertinent question is not whether the Ban is “ground[ed] in national security concerns”—we can posit that it’s “grounded” in such concerns, at least at a very broad level of generality.  The relevant question for purposes of the Romer inquiry, however, is whether there’s any reason to believe the broad Travel Ban exclusions of the nationals of the five nations will in any meaningful way address those “concerns,” or whether, instead, the operation of the Proclamation is “so discontinuous with the reasons offered for it”—with the facially plausible “national security concerns” invoked on its behalf—that its promulgation is “inexplicable by anything but animus.”

And the answer to that question is that there’s no reason to believe—nor even any presidential “finding”—that the Travel Ban will prevent dangerous persons from coming into the United States, compared to the system that was in place before Trump started issuing his executive orders.

Invoking a finding made by the President in the Proclamation, Chief Justice Roberts explains (p.34) that whereas the text of the Ban “says nothing about religion,” “[t]he Proclamation is expressly premised” on “preventing entry of nationals who cannot be adequately vetted” and inducing other nations to “improve their practices” to allow the United States to engage in such “adequate” vetting of their nationals.  As I’ve already explained at great length, however, “inadequate vetting” of the sort the Proclamation describes, in and of itself, does not create any meaningful national security problem for the United States for a very basic reason:  If the State Department’s vetting of a particular national of one of the named countries, to ensure that he is not a terrorist threat or otherwise inadmissible, isn’t “adequate”—because of his nation’s unwillingness or inability to provide the U.S. with adequate information or otherwise—then that person is not permitted to enter the United States.  Pursuant to 8 U.S.C. 1361, an applicant for a visa or for admission has the burden of proving not only “that he is eligible to receive such visa or such document,” but also that he “is not inadmissible under any provision of [the law].”  And if he “fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter.

Consider, for example, a case involving exactly the sorts of cooperation inadequacies identified in the Trump Proclamation:  Say, for instance, that a national of one of the covered countries applies for a visa, makes application for admission, or otherwise attempts to enter the United States, and his home country has failed to issue him a passport “embedded with data to enable confirmation of identity,” or has failed to respond to a U.S. request for “identity-related information not included in its passports,” or for information that nation possesses about the alien’s “known or suspected terrorist and criminal history.”  In such a case, because of the country’s failure or refusal to adequately cooperate with the United States, the alien will typically not be able to meet his burden of establishing that he is not inadmissible, and therefore he will not be allowed to enter.  This explains why, even without the Proclamation, the State Department refused to issue visas for aliens from the countries in question at far higher rates than for other aliens (see Cato amicus brief at 22).

The actual effect and design of the Proclamation, then, is not, as the presidential finding and Chief Justice Roberts suggest, to preclude entry of individuals about whom the Government “lacks sufficient information to assess the risks they pose to the United States.”  To the contrary, its overwhelming, if not exclusive, function, and effect, is to exclude the many thousands of the nationals of the countries in question for whom the U.S. government has sufficient information to assess that they pose no such risks—for example, individuals who because of (very young or old) age, or disability, or established opposition to terrorism, cannot reasonably be considered a threat; or individuals who otherwise are able to provide compelling, reliable evidence that they are not inadmissible, despite their home country’s failure to do so; or nationals of one of the designated countries who have for many years been living in a third country in which they have not demonstrated any grounds for inadmissibility, and who have not recently visited the designated country of which they are a national.

Chief Justice Roberts writes that the Court “cannot substitute [its] own assessment for the Executive’s predictive judgments,” and that the Justices should give “appropriate weight” to “the Executive’s evaluation of the underlying facts” (p.35).  Even if that were the proper posture for the Court to take, however, the President made no “predictive judgments” here, based upon a careful “evaluation” of the facts or otherwise, about the risks posed by nationals of the countries in question, to which the Court should defer:  After the extensive, six-month interagency assessment, the President did not, in the September Proclamation, make any findings at all about any new, or unacceptable, risk of terrorism being committed by the nationals of the countries covered by the Proclamation.  That’s hardly surprising, given that no one from those countries has killed anyone in a terrorist attack in the United States in over four decades.

Of even greater significance, the President’s Proclamation also didn’t find, or even suggest, that the highly reticulated scheme that Congress has enacted to deal with the problem the Proclamation identifies—the failure or refusal of some countries to adequately assist U.S. vetting of their nationals—has resulted in any additional harm, or risk of harm, to the national security.

Chief Justice Roberts apparently realized strength of this argument, for he addressed it earlier in his opinion, in connection with the statutory claim (p.16).  In response to plaintiffs’ suggestion “that the entry restrictions are unnecessary because consular officers can simply deny visas in individual cases when an alien fails to carry his burden of proving admissibility—for example, by failing to produce certified records regarding his criminal history,” Roberts’s response was to offer a slightly different justification for the Ban:  “A critical finding of the Proclamation,” he writes, “is that the failure of certain countries to provide reliable information prevents the Government from accurately determining whether an alien is inadmissible or poses a threat.  Proclamation §1(h). . . .  [F]raudulent or unreliable documentation may thwart their review in individual cases” (emphasis added).

The problem with this clever move, however, is that the President didn’t find that U.S. officials have been making inaccurate assessments of admissibility based upon “fraudulent or unreliable” documentation offered by nationals of the named countries.  It’s true that paragraph 1(h) of the Proclamation, cited by the Chief Justice, notes in passing the obvious point that “vetting is less reliable when the country from which someone seeks to emigrate exhibits significant gaps in its identity-management or information-sharing policies.”  Notably, however, Trump did not find—presumably because the practice and evidence do not support it—that U.S. officials have allowed persons to enter the U.S. based upon such “less reliable” vetting.  Nor did the President make any findings that such persons have “fraudulently” persuaded officials to allow them to enter the United States.  Perhaps that explains why the Solicitor General did not rely upon any argument based on “inaccurate” and “fraudulent” visa or entry decision-making in either of his briefs to the Court.

This is a case, then, in which the Court did not so much defer to the “Executive’s predictive judgments” and “evaluation of the underlying facts” as much as it conjured up some facts and findings—and problems purportedly addressed by the Travel Ban—of its own making.

* * * *

In his discussion of why the Trump Travel Ban is ostensibly distinguishable from the Order at issue in Korematsu, Chief Justice Roberts writes (p.38) that “[t]he entry suspension is an act that . . .  could have been taken by any other President.”  That statement, I think, reflects the Court’s fundamental mistake:  The majority appears to believe that the Proclamation itself is a standard-issue national security measure that “any other President” might have issued, and that the plaintiffs’ true objective is thus to ask the Court to use this case to bash Trump and become part of the fictional “judicial resistance”—to treat him differently than other Presidents because of the ugliness of his anti-Islam rhetoric.  “The issue before us,” writes the Chief Justice (slip op. at 29), “is not whether to denounce the statements.”

He’s right about that much.  The significance of the statements is not that they’re a reason or an occasion for the Court to give Trump his comeuppance (although it’s telling that Roberts chooses to refrain from even “denounc[ing]” Trump’s systemic bigotry and hatred[3]).  The importance of the statements is, instead, that they offer an explanation for an executive action that would otherwise make no sense.

To be sure, the Travel Ban is something that “any other President” might have issued—if that “other President” had promised that he’d impose a “total and complete shutdown of Muslims entering the United States” because “we can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.”  A President who hadn’t made such a commitment, however, or who did not otherwise wish to exclude from the United States Muslims who are not terrorist threats but who the President presumes to have a visceral “hatred” of our nation—any “other President,” in other words, who actually cared about preventing terrorism in the United States—would not have issued the Proclamation, for such a ban is palpably untailored to addressing that or any other national security threat.

What to Make of Justice Kennedy’s Vote

So what explains Justice Kennedy’s crucial vote to join the majority?  After all, his separate opinion isn’t even thinly veiled—he doesn’t refer to Donald Trump by name, but there’s no hiding the fact that Kennedy is accusing Trump of  “disregard[ing]” the Constitution (and its “meaning and promise”), and of violating his oath.  Worse than that:  Trump is deliberately ignoring “these constitutional guarantees and mandates” even when there’s “an urgent necessity” that he adhere to them.  There’s no denying that Kennedy believes Trump is the source of the world’s “anxi[ety]” and its doubts about whether “our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

As I noted at the top of this post, then, Kennedy’s choice not to enjoin Trump’s bigoted and unconstitutional conduct betrayed virtually every one of the laudable principles on which he based his career as a jurist, including (as Jack Goldsmith recounts) honoring the dignity of all persons and preserving liberty.  The Court’s ruling, even if it is, as I’ve argued, “only” about judicial deference rather than the merits, emboldens a President who daily scoffs at and degrades the sort of civility, tolerance and equanimity that Kennedy has long insisted upon, and who regularly engages in the worst and most conspicuous sorts of religious discrimination and denigration that Kennedy has long condemned (even when, as in Masterpiece, it takes a much less acute, virtually benign form).  As Kennedy’s concluding lament about “[a]n anxious world” suggests, Trump is also rapidly destroying the world’s faith in the American constitutional order and traditions, something Kennedy has spent many years trying to cultivate and preserve.  What’s worse, Trump has also displayed nothing but contempt for the independence of the federal judiciary—including even an attack on the integrity of the first judge who ruled against one of his travel bans.  Justice Kennedy knows all this, of course, and yet still he deferred.

The most discordant thing about Kennedy’s choice, however, was that he so meekly accepted the idea that the Court was powerless to stop what Kennedy himself obviously saw as an overt case of egregious unconstitutional conduct.  As it happens, Kennedy is right that “[t]here are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.”  It’s fairly shocking, however, to see such a pronouncement in an opinion penned by Anthony Kennedy.  (I can’t recall offhand anything remotely similar.)

Many things have been written about Justice Kennedy in the past five days, and there’ll be many more to follow.  In reading these tributes and reflections, I couldn’t help but notice the oddity that thus far almost no one (save Jack Goldsmith and Ross Douthat) has emphasized the characteristic that most distinguishes Kennedy’s tenure on the Court:  He is almost surely the most “activist” Justice in at least the past 80 years, if not much longer.  In case after case, across a vast range of subject areas, he has been not only willing but eager to harshly condemn governmental actions as inconsistent with his conception of what the Constitution requires, not only at the local level, but also in cases involving the federal political branches.  Nor has he been shy about enjoining such actions, no matter how well-established their pedigree.  Even if we limit ourselves to cases involving federal statutes and policies in which Kennedy himself wrote the majority or a substantive opinion, the list is impressive; just off the top of my head, his Greatest Hits would include City of BoerneAlden v. MaineWindsorBoumediene v.MaineWindsorBoumedieneCitizens UnitedLegal Services Corp. v. VelazquezAshcroft v. Free Speech CoalitionZivotofskyUnited FoodsPlayboy EntertainmentAlvarezMatal v. TamColeman v. Maryland Court of Appeals, Eastern Enterprises v. ApfelColorado Republican Party I, and Clinton v. City of New York.  (Of course he also joined countless other such decisions, including Shelby CountyU.S. v. MorrisonNew York v. U.S.PrintzEichmanNTEUSeminole TribeGarrettFlorida PrepaidCollege SavingsFEF v. PCAOBPlautHosanna-TaborReno v. ACLUU.S. v. StevensWisconsin Right to LifeDavis v. FECMcCutcheonBooker, et al.)[4]

Anthony Kennedy was, in short (and both for better and for worse), the ultimate judicial supremacist—as Douthat puts it, the chief architect of the “judiciary’s imperial role,” from his landmark decision in City of Boerne v. Flores, excoriating Congress for deigning to interpret the Constitution differently from how the Court had done so, to his sharply worded separate opinion in NIFL v. Becerra—issued just minutes before Trump v. Hawaii.  In NIFL, the same 5-4 Court held that the First Amendment bars a California statute requiring unlicensed family planning facilities to inform pregnant women that they are, in fact, unlicensed, and requiring other, licensed facilities to inform pregnant women where they might obtain comprehensive family planning and abortion services.  Kennedy was prompted to write separately by a stray, boilerplate statement by the California legislature that the statute was part of the State’s legacy of “forward thinking.”  Kennedy reacted to that statement as if it were Orwellian, and decided to give the State a stern, righteous lecture about constitutional fidelity and the slow creep to authoritarianism that he saw looming in its modest, well-intentioned law:

[I]t is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.”  Wooley v. Maynard, 430 U. S. 705, 715 (1977).  It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.  Governments must not be allowed to force persons to express a message contrary to their deepest convictions.  Freedom of speech secures freedom of thought and belief.  This law imperils those liberties.

Contrast that excoriating passage with Justice Kennedy’s meek, and toothless, plea to the President in Hawaii to take his oath seriously and to “adhere to the Constitution and to its meaning and its promise.”  As if Donald Trump, having read Kennedy’s opinion, will suddenly cease his race-baiting, his Muslim-bashing, and his attacks on the press and the judiciary, and will henceforth emulate Presidents Washington, Eisenhower and Bush as a beacon “to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

As his former clerk, Leah Litman, remarked last week with some surprise and regret, “[t]he Justice who said and did so many things that reflected a muscular commitment to judicial supremacy finally balked.”  But why?  Why did Justice Kennedy choose this, of all cases—in which the President is so conspicuously and wantonly “disregard[ing] the Constitution and the rights it proclaims and protects” (Kennedy op. at 1) and scoffing at the “urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs” (id. at 2)—to become a judicial “minimalist,” in thrall to the passive virtues, and thereby assist in the Court’s abdication of its responsibility to ensure that the political branches abide by basic constitutional dictates such as the prohibition on disfavoring persons of a particular religion?  Why be much more deferential to President Trump here than he was to, e.g., President Bush in Boumediene?  [UPDATE: As a careful reader reminds me, however, his record on this score is hardly uniform: There’s at least one previous example of Kennedy’s reluctance to have the judiciary “venture into foreign affairs management” with respect to the treatment of foreign nationals.]

Is it simply, as Mark Graber argues, that “Kennedy never wavered in his commitments to constructing a constitutional politics that favored the GOP”?  (Compare, for example, Kennedy’s visceral disdain for President Obama’s Affordable Care Act, reflected both in his questioning at oral argument in NFIB v. Sebelius and in the extreme, four-Justice opinion he joined in that case.)  Did Kennedy suddenly realize the virtues of comity, the day before he announced his retirement?  Or is there some other explanation?  We may never know for sure.

4. What’s the Upshot with Respect to the Constitutionality of Proclamation 9645?

I’ve tried to explain in this post that, far from holding that the Travel Ban is lawful—something that no Justice of the Supreme Court concluded—a majority of the Court actually determined that the First Amendment bar on deliberate discrimination against individuals on the basis of their religious denomination applies to policies about who may enter the United States.  Furthermore, five Justices appeared to confirm what virtually everyone knows to be true—namely, that Proclamation 9645 would not exist but for Donald Trump’s campaign promises to impose a “Muslim Ban,” and but for the fact that it has a dramatic, foreseeable, and disparate impact on Muslims seeking to enter the United States.  That is to say, the Travel Ban violates the Constitution.

What follows?  Well, the President, Congress and other government officials should take steps to avoid violating the Constitution, notwithstanding the fact that the Court turned aside the plaintiffs’ challenge to the Travel Ban.  [UPDATE: As Professors Aleinikoff and Pillard wrote in 1998, “[i]f the political branches parrot the courts’ lenient scrutiny, everyone has deferred to everyone else, and nobody has done the full-fledged constitutional analysis.”  The Court’s deference to the President on questions of the entry of foreign nationals “does not give the political branches a blank check to do as they please, but leaves them with a special responsibility to comply with constitutional norms in view of a diminished judicial backstop.”]

Of course, it’d be foolish to think that Donald Trump or the officers he has appointed will now see the light and conform their conduct to what the First Amendment requires.  Even so, it’s important to stress that they’d do so if they took their oaths seriously.  That’s the basic lesson offered by the example of then-Acting Attorney General Sally Yates in the first two weeks of the Trump Administration:  Like a majority of the Supreme Court in Hawaii, she concluded that although Trump’s first Travel Ban may have been facially constitutional, that did not resolve the “best view of what the law is after consideration of all the facts,” including “statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order.”  And because Yates evidently concluded that the first Travel Ban was the product of the President’s anti-Muslim promises, she refused to have any part in defending it.

So, too, now:  Presumably many, if not most, of the officials who have been involved in the creation or implementation of Proclamation 9645 know full well that it does not advance any national security interests and, more to the point, that it would not exist but for the President’s commitment to impose a “Muslim Ban.”  Those officials, in other words, know that the Ban is unconstitutional[5]—which should inform their decisions about whether and how to implement it, notwithstanding Trump’s “victory” in the Supreme Court.

Don’t hold your breath.

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[1] It’s noteworthy that as early as 1957, in a case that challenged race-based conditions on entry (United States ex rel. Lee Kum Hoy v. Murff), the Solicitor General acknowledged to the Court—citing Bolling—that “[u]ndoubtedly, even though the Fifth Amendment has no equal protection clause, grossly discriminatory legislation or grossly discriminatory administrative action, especially if predicated on racial grounds, would violate due process” (emphasis added), and that there is no evidence that any Justice disagreed.  (The Court did not reach the merits of the discrimination claim in Lee Kum Hoy, concluding that it was unnecessary to do so in light of the SG’s representation that the blood grouping test requirement at issue in the case had “been for some time applied without discrimination in every case, irrespective of race, whenever deemed necessary.”  According to Jack Chin, Cindy Chiang and Shirley Park, although it is difficult to reconstruct why the Court acted as it did, there is no record of anyJustice internally expressing the view that the Constitution allows race discrimination in admissions.)

[2] And as long as we’re discussing silver linings, or “when life gives you lemons,” or simply taking a cue from Smokey Robinson . . . there’s one other salutary development in the case, too.  [Warning:  Unless you’re a FedCourts nerd, you can probably safely skip this footnote.]  The Court held that the individual plaintiffs have Article III standing to challenge the constitutionality of the Travel Ban, even assuming that (in the government’s words) the Establishment Clause does not “give them a legally protected interest.”  Their standing is, instead, premised on concrete harms they suffer by virtue of the way in which the government is treating other parties:  When the government excludes their relatives from entering the United States, it incidentally harms the plaintiffs’ “interest in being united with [their] relatives,” which is, the Court holds, all that Article III requires (pp. 25-26).

This holding is important because the Court had been deeply reluctant in recent years to recognize “third party” standing in such circumstances (i.e., where the third party’s own constitutional rights are not violated), absent a showing that the “first party” (here, the excluded foreign national) has a barrier to suing and the third party has a special relationship with that party making her an apt representative to advance the first party’s rights.  I thought that the Court might avoid addressing the merits in the Travel Ban case by relying on this restrictive doctrine about “jus tertii” standing.  Much to my surprise, however, the Court actually held that the doctrine is no bar to constitutional standing.  The Court assumed arguendo that the plaintiffs themselves do not suffer any Establishment Clause-related injury (such as the dignitary harm felt by all Muslims when the state discriminates against Muslim immigrants, or the harm we all suffer when the state violates the “structural” protections of the First Amendment), but that nevertheless the individual plaintiffs’ injury in being denied the opportunity to meet with their relatives—a clear “injury-in-fact”—was sufficient to create Article III standing even if that injury is not in the “zone of interests” that the Establishment Clause protects.  As far as I’m aware, the last time the Court issued such a ruling of this kind was in Pierce v. Society of Sisters in 1925, in which the Court held that private schools could sue to challenge an Oregon law requiring parents to send their children to public schools, based upon the economic harm the private schools would suffer due to lowered enrollment.  Together with Pierce, Trump v. Hawaii now stands for the proposition that the “zone of interests” test for third-party standing is, at most, a test of “prudential” standing not required by Article III—and that’s especially important because the Court has begun to question whether it has the authority to impose such “prudential” limits on jurisdiction conferred by Congress.

[UPDATE: There’s one other thing about the Court’s Article III holding that’s significant, too, and perhaps counterintuitive to many observers who’ve been weaned on the idea that “foreign nationals seeking admission have no constitutional right to entry” (slip op. at 30):  If the “third party” plaintiffs in the case had standing even if Establishment Clause doesn’t “give them a legally protected interest,” a fortiori the excluded aliens themselves would also be entitled to sue to challenge the legality of their exclusion, regardless of whether they can be said to enjoy any constitutional “rights,” for the government is acting directly upon them and they have an even more obvious injury-in-fact than their relatives do–namely, the denial of their opportunity to enter the United States.]

[3] Roberts diverts from his argument briefly (p.28) to describe how “[o]ur Presidents have frequently used” the bully pulpit “to espouse the principles of religious freedom and tolerance on which this Nation was founded,” quoting Washington, Eisenhower and, notably, George W. Bush after 9/11, when he spoke at the D.C. Islamic Center “to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that ‘[t]he face of terror is not the true faith of Islam,’ and that America is ‘a great country because we share the same values of respect and dignity and human worth.’”  Instead of then simply saying that Donald Trump has debased and betrayed this great tradition, however, Roberts resorts to euphemism:  “Yet it cannot be denied,” he continues,

that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words.  Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.

“Performed unevenly”?  “Plaintiffs argue”?

[4] At the state level the list is probably even longer, including such major decisions as ObergefellLawrenceRomer, LukumiSorrellWhole Woman’s Health v. HellerstedtPlanned Parenthood v. Casey, Miller v. Johnson, Rice v. Cayetano, Granholm v. Heald, Roper v. Simmons, Kennedy v. Louisiana, Hall v. FloridaPeña–RodriguezFranchise Tax Bd. of Cal. v. Hyatt, PackinghamBarnard v. Thorstenn, Kiryas Joel, and Supreme Court of Virginia v. Friedman.

[5] Howard Wasserman assumes that “Trump and his aides and officials believe they are adhering to the Constitution, as they interpret and understand it.”  I don’t think there’s any reason to make such an assumption.  After all, in all of its extensive briefing in the case, the Department of Justice never even asserted that the Ban was untainted by anti-Muslim purposes, or even that it would have been promulgated in the absence of such religious discrimination. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).