The Patriot Post® · Travel Ban

If you thought elections didn’t matter, I give you the Supreme Court ruling today on the so-called Trump travel ban. I found it very scary — not because I disagree with the outcome (I’m thrilled with the outcome) but because the ruling wasn’t 9-0.

The Supremes are supposed to opine on constitutional matters, and arguably the most consequential cases are when there are legitimate competing positions. The recent ruling on the case involving the cake maker and the same-sex couple is a perfect example. Legitimate religious freedom ran smack into discrimination issues, and a judgement call on the strength of religious conviction on the part of the baker mattered a great deal. An executive order is at the other end of the judgment spectrum. It is a written document, and unless we want to turn the entirety of law on its head, what the author may have been thinking when he wrote it is irrelevant; only what the actual words say matters.

The Constitution is unusually clear about the absolute authority of the president to determine whether to allow entry of aliens into the country. Even if a written ban explicitly cited a religious test — like no Muslims allowed — at worst you would find yourself back at the intersection of competing constitutional issues. (This was arguably part of the reason why the first stab at this by Trump was flawed; it compromised the constitutional rights of certain American citizens). That’s why we pay the Supremes the big bucks. But the final order said nothing about religion. It cited countries that posed a sufficient national security threat, primarily due to a lack of background information on those seeking to enter the U.S., therefore disallowing entry was justified until vetting protocols could be deemed adequate.

That didn’t stop the plaintiffs from arguing that what was in Trump’s mind, as evidenced by things he said on the campaign trail, deserved more weight than the written word. Despite the fact that the most populous Muslim countries were not included in the order, the plaintiffs still tried to characterize the order as a “Muslim ban” and raise the issue of religious discrimination. Totally absurd, but a federal district court bought it, and the case ultimately wound up with the Supremes. As an issue for another day, do we really want a district court judge who is granting standing to entities like the University of Hawaii, which claimed potential loss of “speakers,” and the state of Hawaii, which claimed potential loss of “tourism,” to govern a matter of such national (not just regional) importance? As a practical matter, the “ban” was being enforced anyway with increased vetting, but the constitutional principal was still incredibly important to adjudicate.

And to repeat: The fact that four Supremes bought the thought-police argument over the actual document is truly scary. Consider the implications if taken literally. No contract would be valid if one of the parties could argue that what Trump was thinking when he agreed to the deal outweighed the written contract. And yet that’s the theory the minority relied upon. The majority went out of its way to note that the ruling had nothing to do with the wisdom of the “ban”; the president is authorized by the Constitution to do it, and that’s that. The Left is latching onto this aspect to claim that the ban remains invalid, but that is as silly as those who support the ruling trying to claim that the Supremes are in favor of the ban. The Court did what it is supposed to — interpret the Constitution. Period. And the fact that four of them could find it acceptable to inject the mindset of the author into their ruling is truly stunning. Everyone should remember that in November every four years.