Travel Ban Decision (Trump vs. Hawaii)

The Opinion
SCotUSBlog's Case Page

Super brief summary of case:

Candidate Trump included on his webpage a statement about how he intended to stop all Muslim immigration temporarily. (Other than this, the clearest thing he seems to have said on the subject was that the US was "having problems with Muslims coming into the country.")

1.  On his 8th day as president, Trump issued Executive Order 13769 among other things suspended entry of people from certain countries for 90 days.
2. It was almost immediately subjected to legal challenges which delayed its enactment.
3. It was replaced by Executive Order 13780, which removed Iraq from the list of countries banned and clarified that people with legal standing in the US were not subject to the ban.
1. Chad, North Korea, and Venezuela were added to list
2. Chad was removed from list
4. Legal challenges began

In my reading of the opinions (of lay people and judges), it seems to me that the real question at issue here is whether a motivating factor should be used to decide constitutionality. I don't think that either side disagrees that if Candidate/President Trump had never said anything about banning Muslims, that the (second executive) order would be ruled unconstitutional. The dissent seems to be almost entirely around his statements about banning Muslims and the fact that most of the countries are Muslim-majority countries.

The majority's opinion seems to be that his statements not withstanding, the fact that the executive order has a reasonable, non-religious explanation supporting it, and the President has pretty broad powers to control entry into the United States, the executive order is constitutional.

The dissent's opinion seems to be that President Trump expressed a desire to implement a ban on a certain religion and therefore this order which mainly affects some countries with large numbers of that religion is based on religious animus and therefore unconstitutional.

If we go with the dissent for a moment, their position really is that if a person expresses an unconstitutional motivation at anytime, that bars him from enacting any law that would even partially fulfill that motivation despite it being constitutional when the motivation is ignored.

Am I wrong that this would open the door to litigation of any and all laws that have a disparate impact on a group? I suppose it would need to be a protected group. It's hard to imagine a different case. Every now and then a politician is caught saying something anti-Semitic. If they passed a law which had a negative impact on Jews, would that be unconstitutional? Another example might be tax policies that hurt different groups.

On the other hand, what if there actually existed a religion whose sole purpose was to destroy us? If a candidate said he was going to stop them, would he not be allowed to do so because of his religious animus?

Another question that the dissent generates would be at what point can you discern a legislator's or president's motivations? President/Candidate Trump actually said Muslim ban, but what if he had merely said he thought Muslims dangerous and then said we shouldn't allow dangerous people into the country, would that be clear enough? This would definitely create a whole new set of cases and judgments to define the line of motivation, and you can be assured that the left's interpretations of motivations are often stretched pretty far. Just think about the scant evidence they use to call someone misogynistic (because they think Judge Kavanaugh should be confirmed) or racist (because their middle name is Beauregard).

Another interesting tidbit about this decision. I think this is a case where the split wasn't caused by political ideology but judicial ideology. If the judges were polled as to whether they approved or disapproved of the law, I would bet that the disapprovers would outnumber the approvers. It might even be unanimous. I know that's how I feel. I disagree with the policy, but still think it's constitutional. Count this as an argument that the conservative justices aren't voting for political reasons. Are there any similar cases where the liberal justices vote against their political beliefs? J. Ginsburg has expressed an anti-Trump animus. Should her decisions be negated?

Other Thoughts

There is a lot of back and forth about rational versus reasonable basis. The dissent claims that "if a reasonable observer would understand an executive action to be driven by discriminatory animus, the action be invalidated" (reasonable basis). The opinion believes that if the law has an underpinning for legitimate purposes, then it must be upheld (rational basis). The rational basis camp cites many precedents suggesting that this should be used on cases of national defense, foreign affairs, and entry of foreign nationals while the dissent's (single yet very clear) precedent pertains to "holiday displays and graduate ceremonies". If the dissent had won this argument, it would have expanded the use of the reasonable basis review.

Furthermore, the dissent strongly believes that "a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus." I just don't know if that's true. I think reasonable people could fall on both sides, though a majority of them would probably agree. It really depends on how it is presented. If you said, "President Trump wanted a Muslim ban and the first thing he did in office was ban a bunch of Muslims from entering the US.", then yes. If you instead said, "President Trump said he wanted a Muslim ban, but keep in mind, President Trump is prone to exaggeration and doesn't really precisely what he means" (give numerous examples) "Upon entering office he issued a sloppy order that banned entry from the 7 mostly Muslim countries that President Obama's administration had placed restrictions on because of 'the growing threat from foreign terrorist fighters.' After legal challenges, President Trump cleaned up the order as it related to people who already had legal standing, added two countries with very few Muslims and removed Iraq. It also included explicit, non-religious reasons the countries were on the list providing them a way out. At most, it 'bans' 8% of world's Muslims." What would a reasonable person say to that? I don't really know.

• If a Candidate/President expresses a religious animus, and then actually has a change of heart, would the dissenters still prevent her from implementing a similar travel ban? Would she need to express her change of heart? If President Trump says he loves Muslims would he be in the clear?
• If one of those countries, or any Muslim majority country declares war on us, would President Trump be barred from fighting back? Would he have had to have said on the campaign that he didn't like Muslims?
• “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla­mation inflicts upon countless families and individuals” - Is this a legal argument or a logical fallacy?
• In J. Sotomayor's dissent, footnote 7, "It is important to note 'using the term alien to refer to other human beings' to be 'offensive and demeaning'" I don't think it's important to note that at all.
• Why does the dissent cite Democrats who believe it to be bad policy? The quality of the policy should not affect whether it's constitutional.
• “the Proclamation has deleterious effects on our higher educa­tion system; national security; healthcare; artistic culture” - and? OH! That was your point. Everybody stop the travel ban! Let anyone who wants to come in come in, otherwise our artistic culture is doomed!

Good Writing

“Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”