Through the Looking Glass, Darkly: The Supreme Court’s Muslim Travel Ban Decision

Four years ago, in one his first acts as president, Donald Trump suspended the entry into the United States of individuals from seven predominantly Muslim countries, while making little effort to hide his animus towards this religious group. What at the time may have seemed a brazen assault on principles of religious tolerance and nondiscrimination was in retrospect merely a prelude of things to come—the open embrace of white supremacy, flagrant disregard for legal norms, and a calculated effort to inspire hatred and foment discord. Last week, in one his first acts as president, Joe Biden revoked the travel ban (a/k/a Muslim Ban).

Of course, before Biden repealed the ban, the Supreme Court upheld it. Although the ban has now been consigned to the dustbin of history, it is worth reflecting how the Court’s decision already looks in retrospect given what occurred during the remainder of Trump’s term and, most notably, Trump’s effort to overturn the 2020 election through the lies and coded calls to violence that culminated in the Jan. 6 assault on the Capitol by a mob of his supporters. Indeed, one might view the travel ban and the events of January 6 as bookends to an administration that tapped into the darkest corners of the American psyche, unleashing forces that went from singling out a disfavored minority group to subverting the democratic process itself.

In its 2018 decision in Trump v. Hawaii, a narrowly divided Court rejected a challenge to the ban. After dismissing the plaintiffs’ statutory arguments, the Court turned to their Establishment Clause challenge, which maintained that there was sufficient evidence to show the ban was driven by religious animus and thus forced the Court to confront Trump’s multiple statements on the subject.

Trump, of course, had made little effort to hide his intentions and, when he half-heartedly did seek to mask them, it only made his goals clearer. Trump repeatedly called for a “Muslim Ban” during the 2016 campaign and, after the election, alternated between doubling-down on that assertion and asking his advisers to “show him the right way to do it legally.” Trump then complained when the ban was “watered down” in the two subsequent executive mandates issued to pass constitutional muster in court (travel ban 2.0 issued in March 2017, and 3.0 issued in September 2017).

In his opinion for the Court, Chief Justice John Roberts defended the constitutionality of the travel ban based on the judiciary’s limited role in the face of the government’s broad power to exclude non-citizens from the country and its deference to the executive in matters of national security. Roberts also emphasized the need to separate “the statements of a particular President” from “the authority of the Presidency itself.”

The Court agreed, however, to look behind the surface of the travel ban (which did not openly discriminate based on religion) to the extent of applying rational basis of review—to determine whether the ban was plausibly related to the government’s stated objective to protect the country and improve the immigration vetting process. To counter the evidence that the ban was motivated by impermissible religious animus, the Court cited multiple changes since the ban was first issued, noting that it now covered less than 10 percent of the world’s Muslim population, had reportedly been subjected to a multi-agency review process, and had dropped three countries from its original list.

But, as Justice Sonia Sotomayor maintained in her dissent, the majority had conveniently ignored much of the evidence surrounding the ban—evidence that would cause any reasonable observer to conclude that the government’s asserted national security justifications were pretextual.  As Justice Sotomayor explained, “new window dressing cannot conceal [the] unassailable fact” that the statements of Trump and his advisers contaminate the travel ban with impermissible discriminatory animus towards Muslims, and that the ban should fail even under rational basis review.

The events of Jan. 6 have vindicated Justice Sotomayor, reinforcing the danger when institutions meant to check the president accommodate the president’s misconduct and cover up falsehoods with legal sophistry. Trump, so his defenders have asserted, was not subverting a fair election but seeking to preserve one by ensuring that every legal vote was counted. Yes, it’s even clearer today that Trump should be taken at his word, like when said he would refuse to accept the result of an election he lost because, by definition, any such election was unfair and corrupt. But it was already sufficiently clear when the Supreme Court upheld the travel ban, after Trump had called for “a total and complete shutdown of Muslims entering the United States.”

Ironically, Trump v. Hawaii provided the Court with the opportunity to overturn its infamous decision in Korematsu v. United States, which, Chief Justice Roberts acknowledged, “was gravely wrong the day it was decided, and has been overruled by in the court of history.” Notably however, the Court distinguished Korematsu because it upheld the relocation of 80,000 U.S. citizens of Japanese descent during World War II to concentration camps on the explicit basis of race. But Korematsu would have been no less repugnant if the government had reached a similar result through facially neutral means that sought to conceal the racial animus—exactly what occurred in the travel ban case. And, in fact, as subsequent developments have shown, Korematsu was rooted in racial animus papered over by false assertions of national security, leading the Solicitor General to confess error in 2011 for its role in failing to correct those assertions when the case was before the Supreme Court.

Unlike in Korematsu, where later revelations contributed to a fuller understanding of the factors that motivated the mass internment of Japanese-Americans, it is already obvious what motivated the Muslim travel ban, as it was when it was first implemented. Although the ban has been rescinded, the Court’s decision should remain a cautionary tale against accommodating the misconduct of a particular president to serve some abstract notion of the presidency and against affording any president broad deference on matters of national security, especially when divorced from common sense. While such deference is particularly inappropriate for a president as willing to lie for personal and political gain as Trump, the Court, to quote Chief Justice Roberts’ 2019 decision reviewing the inclusion of a citizenship question on the census, should never “exhibit a naïveté from which ordinary citizens are free.”

Image: People protest the Muslim travel ban outside of the US Supreme Court in Washington, DC on June 26, 2018. Photo by MANDEL NGAN/AFP via Getty Images

 

About the Author(s)

Jonathan Hafetz

Professor of Law at Seton Hall University School of Law Follow him on Twitter (@JonathanHafetz).