Michael Gaynor
SCOTUS holds Trump travel ban to be constitutional; anti-Trumpers outraged
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By Michael Gaynor
June 27, 2018

The First Amendment does not mean that Moslems outside the United States have a constitutional right to travel to the United States, either as immigrants or visitors, to practice their religion in the United States.

Can an executive order that is constitutional on its face still be unconstitutional?

According to anti-Trumpers, the answer is yes, if they think the President who issued it had a bad motive.

According to the United States Supreme Court majority in Trump v. Hawaii, it's conceivable, but President Trump's limited travel ban is constitutional.

Should an executive order be examined by the judiciary for a bad presidential motive that the judiciary thinks should nullify it, even though it would be lawful if another President issued it? Should a law passed by Congress and signed by the President be declared unconstitutional if the judiciary thinks Congress and/or the President had an ulterior motive in passing and/or signing it?

I doubt that's what the Framers had in mind for the judiciary.

Too many checks and balances can be as bad as none.

The United States Supreme Court should have upheld the Trump travel ban 9 to 0 instead of 5 to 4.

President Trump's executive order imposing a limited travel ban on travel from countries with about 8% of the world's Moslem population is plainly constitutional, not the first shot in a war against Islam.

The ban applied to a handful of Moslem majority countries and North Korea and Venezuela.

Chief Justice John Roberts wrote the majority opinion, properly held that the ban "is squarely within the scope of Presidential authority" and noted that its text does not even mention religion.

Chief Justice Roberts acknowledged that President Trump had made many statements expressing a desire to impose a "Muslim ban" and specifically called for a "total and complete shutdown of Muslims entering the United States.

The Chief Justice also mentioned that the President had said that "Islam hates us" and the United States had "problems with Muslims coming into the country."

Nevertheless, the Chief Justice determined that the powers of a president to conduct the national security affairs of the nation sustained the travel ban.

"The issue before us is not whether to denounce the statements," Chief Justice Roberts wrote. "It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility."

"In doing so," he wrote, "we must consider not only the statements of a particular president, but also the authority of the presidency itself."

EXACTLY!

Additionally, the pertinent federal statute gives presidents the power to "suspend the entry of all aliens or any class of aliens" as they see necessary and Chief Justice Roberts determined that the statute "exudes deference to the president in every clause."

The travel ban itself is neutral, justified by national security concerns and "expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices."

Thus, as the Chief Justice put it, "[t]he entry suspension is an act that is well within executive authority and could have been taken by any other president – the only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation."

Chief Justice Roberts and Justices Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr. and Neil Gorsuch refused to invalidate the travel ban because President Trump had issued it.

Justice Sonia Sotomayor, joined in dissent by Justice Ruth Bader Ginsburg, was aghast that the majority had not found that the ban was inspired by "animosity toward a disfavored group" and flayed the majority. "Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments," she wrote. "Because the Court's decision today has failed in that respect, with profound regret, I dissent."

Justice Sotomayor insisted that majority had tried to "launder" President Trump's statements and "all of the evidence points in one direction." She charged the majority with "unquestioning acceptance" of President's national security claims and inconsistency (because they had allegedly used a remark from a state commissioner expressing hostility to religion as the basis of ruling earlier this month in favor of a Christian baker who refused to create a cake for a same-sex wedding.

"Those principles should apply equally here," Justice Sotomayor declared. "In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals' fundamental religious freedom."

Justice Sotomayor, having dissented in the Christian baker case, apparently believed that President Trump had to prove that he was tolerant and neutral in order to sustain his travel ban and that an executive order constitutional on its face should be held to be unconstitutional if the court decides the president who issued it had a bias.

Justice Stephen G. Breyer, joined by Justice Elena Kagan, also dissented, doubting that the Trump administration could be trusted to enforce what he called "the proclamation's elaborate system of exemptions and waivers." Justice Breyer "on balance, f[ound] the evidence of antireligious bias . . . a sufficient basis to set the Proclamation aside."

Justice Kennedy opined that President Trump should be allowed to carry out the travel ban and called for religious tolerance. "The First Amendment prohibits the establishment of religion and promises the free exercise of religion" and there is "an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs," Justice Kennedy wrote.

The "free exercise of religion" does bot entitle people around the world to come to the United States, however.

Article VI of the United States Constitution states in part: " The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

The Constitution prohibits a religious test "as a Qualification to any Office or public Trust under the United States," not any and all religious tests or a travel ban on some predominantly Moslem countries.

The First Amendment states in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

The First Amendment does not mean that Moslems outside the United States have a constitutional right to travel to the United States, either as immigrants or visitors, to practice their religion in the United States.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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