Today, in Trump v. Hawaii, No. 17-965 (U.S. Jun. 26, 2018), the Supreme Court has enshrined Donald Trump’s bigotry into our nation’s jurisprudence. In a 5-4 decision, the Court reversed a preliminary injunction against the third iteration of President Trump’s travel ban. The Court determined the preliminary injunction was an abuse of discretion and remanded the case for further evaluation on its merits. But further proceedings are unlikely to change the Court’s result, which found the travel ban permissible under the Immigration and Nationality Act (INA) and the First Amendment’s Establishment Clause despite Trump’s vehemently anti-Muslim motivation for the ban.
The travel restrictions, established in Presidential Proclamation No. 9645, claimed to protect national security by restricting the flow of nationals from eight foreign countries the Trump administration labeled as having deficient systems for managing and sharing information about their nationals. See Trump, slip op. at 3. These nations originally included Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, all of which are majority Muslim except for North Korea and Venezuela. See Trump, slip op. at 5.
In his opinion, Chief Justice Roberts found the plain language of § 1182(f) of the INA granted the President wide-ranging power to restrict which foreign nationals may enter the United States. Section 1182(f) provides that the President can “suspend the entry of all aliens or any class of aliens” whenever he “finds” their entry “would be detrimental to the interests of the United States.” See Trump, slip op. at 11. According to the Chief Justice, the President had presented sufficient evidence showing that the entry of those covered by the ban into the country would be “detrimental” to the national interest. See Trump, slip op. at 10.
But the crux of the debate focused on whether or not the anti-Muslim rhetoric surrounding the travel ban ran afoul of the Establishment Clause, which forbids government policies “respecting an establishment of religion.” U.S. Const., Amdt. 1. Accordingly, the government “may not adopt programs or practices . . . which aid or oppose any religion.” Epperson v. Arkansas, 393 U.S. 97, 106 (1968). But for Chief Justice Roberts, only laws that “lack any purpose other than a ‘bare . . . desire to harm a politically unpopular group’” are illegitimate under the Court’s deferential standard. See Trump, slip op. at 33 (citing Dep’t of Agric. v. Moreno, 413 U. S. 528, 534 (1973)). Despite the anti-Muslim rhetoric coming from the Trump administration, the Chief Justice held that the Court could not strike the travel ban “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.” Trump, slip op. at 34.
In her forceful dissent, Justice Sotomayor catalogues in laboring detail the substantial record of the travel ban’s anti-Muslim purpose, including Trump’s statement “calling for a total and complete shutdown of Muslims entering the United States” that remained on his campaign website several months into his Presidency. Trump, slip op. at 4 (Sotomayor, J., dissenting). Over the course of seven pages, Justice Sotomayor details myriad other egregious statements, including Trump’s December 2015 comment analogizing his ban to the internment of Japanese-Americans during World War II and Trump’s February 2016 repetition of an apocryphal story to a cheering crowd in South Carolina about how U.S. General John J. Pershing executed Muslim insurgents with bullets dipped in pigs’ blood. See Trump, slip op. at 5 (Sotomayor, J., dissenting). Justice Sotomayor rightfully points out the absurdity of Chief Justice Roberts finding an insufficient level of animus to strike down the travel ban in the face of Trump’s statements, his refusal to retract them, and his insistence that his second Executive Order was simply a “watered down version of the first one.” Trump, slip op. at 8 (Sotomayor, J., dissenting).
Justice Sotomayor also calls out the hypocrisy of the Court’s decision today in light of its decision earlier this month in MasterpieceCakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (U.S. Jun.4, 2018). While the majority in Masterpiece Cakeshop found state commissioners’ hostile comments about Christianity to be evidence of unconstitutional government action, the majority here renders Trump’s statements, far more numerous and hateful than in Masterpiece Cakeshop, to be irrelevant. See Trump, slip op. at 26 (Sotomayor, J., dissenting). A clear message emerges from these two decisions: a different First Amendment applies to Christianity than to Islam.
The Court’s decision today disturbingly parallels the Court’s horrific approval of interning Japanese-Americans during World War II in Korematsu v. U.S., 323 U. S. 214 (1944). See Trump, slip op. at 26-28 (Sotomayor, J., dissenting). In a move to legitimize today’s decision, Chief Justice Roberts explicitly condemns Korematsu, saying it was “gravely wrong the day it was decided.” See Trump, slip op. at 38. But the Court has not truly abandoned Korematsu. It has only repackaged the same xenophobia for a new era. And one day, Justice Sotomayor’s dissent will be praised by the judiciary as having the same foresight and moral clarity as Justice Jackson’s dissent in Korematsu. Until then, we keep fighting.
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