SUPREME COURT UPHOLDS TRUMP’S UNCONSTITUTIONAL TRAVEL BAN

…Justice Sotomayor called out the president by name in her dissent

The SCOTUS over turned 2 lower courts decisions regarding President Trump’s Travel Ban.

I have been following the US Supreme Court for years.  But I have never read a ruling by the court where, even though it was a 5-4 decision for the conservatives, when you read the comments by the conservatives justices, it almost sounds like they were making excuses for their decisions.

I believe that especially for Justice Kennedy, just as he later changed his mind on his pro-Guantanamo Bay detainment decision, I think he will eventually feel that going along with the other conservatives on the travel ban was a bad decision.

The travel ban does not single out Muslims, and knowing how Kennedy usually thinks, the countries with the largest Muslim populations aren't even listed in the ban.  (As a side comment, isn’t it interesting that there are no Trump Hotels in the countries listed in the travel ban.)  Although this Supreme Court, including Justice Kennedy, is sometimes criticized for not staying in its appropriate judicial lane, Kennedy and the majority were properly mindful of the limits on the court's role. Especially in the foreign affairs realm, Justice Kennedy didn't think the court's job included policing the President's extreme potty-mouth.

But Kennedy must have felt the need to remind us that even though the court is not in a position to censor or closely edit a President in foreign affairs, the President himself should remember that he is not above the law.  He is bound by his oath to uphold constitutional values of religious tolerance and respect.  (And we all know how difficult that is for a narcissist like this president.)

In Kennedy's exact words: "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 it lasts."

Although Kennedy voted with Trump, he distanced himself from the President in style and in substance as he became: “a polite uniter, rather than an insulting divider”, as does President Trump.

The other dynamic of this decision is that because the Senate Majority Leader McConnell kept the Republican-controlled Senate from voting on President Barack Obama’s nominee to the court, after the death of Justice Antonin Scalia.  McConnell celebrated his holding back Obama’s candidate decision by posting a picture on Twitter of him shaking hands with of course, Trump’s conservative nominee, Justice Gorsuch.

We all know that if Obama’s candidate, Merrick Garland, had been confirmed, which he probably would have been, this would have been a 5-4 decision for the liberals on the court.

But in any case, Justice Sonia Sotomayor wrote a stinging dissent, and she was joined whole heartedly by Justice Ruth Bader Ginsburg.

Sotomayor read her part in a highly dramatic moment on the bench.

Sotomayor used the president’s actual campaign statements calling for a “complete and total shutdown” of entry into the United States by Muslims. She noted the anti-Muslim videos the president shared on Twitter, including one titled “Muslim destroys a statue of Virgin Mary!”

“Take a brief moment and let the gravity of those statements sink in,” she said.

“And then remember,” Sotomayor added, that the disgusting statements and tweets were spoken or written “by the current president of the United States.”

Sotomayor repeatedly called out the president by name in her lengthy statement and said the majority’s decision “repeats the tragic mistakes of the past” and it “tells members of minority religions” in the United States that “they are outsiders.”

The court, she said, “blindly accepts the government’s invitation to sanction an openly discriminatory policy” and is essentially “replacing one gravely wrong decision with another.”

Justices Stephen G. Breyer and Elena Kagan also dissented, and not “respectfully”.

In her passionate dissent, Sotomayor compared the decision to Korematsu v. United States.  This was the case in which the Supreme Court in 1944 upheld the detention camps of Japanese Americans during World War II.

But Chief Justice Roberts objected to Sotomayor’s use of that case. “Whatever rhetorical advantage the dissent may see in doing so, Korematsuhas nothing to do with this case,” he wrote, adding that “it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”

Neutral policy....?

However, he did admit that the reference “affords this court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”

If nothing else, at least that puts the “Korematsu” decision in its appropriate place as being a totally wrong, high court decision.

Trump’s high-profile travel ban case called for the justices to balance their usual deference of the president on matters of national security, with his barrage of campaign statements, tweets, retweets and comments from the current president always trying to tie Muslims to terrorism.

It was the first time the high court had considered the merits of a policy that has consumed this administration since day one. It also for the first time raised questions about the high court’s role in national security issues.

Lower courts had found that the initial order and the newer versions since, that they exceeded the president’s authority granted by Congress.  And that Trump’s authority was totally motivated by Trump’s prejudice against Muslims.

But the challengers in the Supreme Court, led by the state of Hawaii, pointed to another section of the law, which says a person may not be denied a visa, “just because of the person’s race, sex, nationality, place of birth, or place of residence.”

Allowing the president to ban citizens of a nation, the challengers said, amounts to giving the president a “line-item veto over the entire immigration code.”

Justice Breyer thought the case should be sent back to a lower court for an examination of whether a waiver program that is part of the process was actually providing any exemptions (which is questionable). But even without that, he said, he would “on balance, find the evidence of anti-religious bias . . . a sufficient basis to set the proclamation aside.”

Neal Katyal, the Washington lawyer who argued the case for Hawaii and the other challengers, expressed disappointment on the final ruling and called on Congress to step in.  

But we all know this do-nothing US Congress isn’t going to touch any of this president’s pet projects.

“We continue to believe, as do four dissenting justices, that the travel ban is unconstitutional, unprecedented, unnecessary and un-American,” Katyal said. “We decided long ago that America doesn’t exclude people based on nationality or religion alone . . . The travel ban is an atrocious policy, and makes us less safe and undermines our American ideals. Now that the Court has upheld it, it is up to Congress to do its job and reverse President Trump’s unilateral and unwise travel ban.”  (Good luck with this Congress…)

The justices had reviewed a unanimous ruling from a three-judge panel of the US Court of Appeals for the 9th Circuit in San Francisco. That panel said the third version of the travel ban suffered from the same deficiencies of the first two.  That being that “Trump had again exceeded his lawful authority and that he had not made a legally sufficient finding that entry of those blocked would be detrimental to the interests of the United States.”

The US Court of Appeals for the 4th Circuit in Richmond had struck down the travel ban on the constitutional question. Their 9-to-4 decision took a deep dive into Trump’s statements and tweets since he became president and concluded that this latest proclamation, like the first two, was motivated not by national security concerns, but by Trump’s prejudice toward Muslims.

But the conservative Supreme Court of the United States (SCOTUS), by one vote from Trump’s high-court nominee, they decided to trash the lower court’s appropriate decisions and they went with our less-than-honest US president.

It will not surprise me if down the line, this decision will be looked at more from the view that was offered up by Justice Sotomayor.

It is a decision on a travel ban that is totally motivated by a US President who has a major prejudice against all Muslims.

Copyright G.Ater  2018