Trump’s travel ban and “the political question”

July 22, 2018

Supreme Court terms conclude at the end of every June, and so June is when big, controversial cases are usually decided by the Court. This year was no different. The Court handed down one of its most important decisions on the Trump Administration’s travel ban against citizens from several, mostly Muslim countries.  


Although the case was remanded to the lower courts for further consideration, in normal-person language, the ban was essentially upheld. This decision has enormous consequences for our understanding of the Constitution and for our commitment to the essential morality of the law. It turns on what is called “the political question.”


Pursuant to our constitutional doctrine of “separation of powers,” the legislative branch enacts laws; the executive branch executes laws; and the judicial branch determines whether the laws and their execution are constitutional. But important caveats to this doctrine exist. The Court has consistently held that the judicial branch is largely incompetent to rule on challenges to the executive branch with regards to national security issues.

 
Challenges to national security laws enacted by the executive branch, like the constitutionality of going to war, raise “the political question” and must remain outside the Court’s purview. The president and Congress receive frequent briefings from national security representatives, but the Court does not. Public debate in the courtroom about national security could threaten our country’s safety and endanger our troops and operatives.


Courts have consistently concluded that the judicial branch must defer to the executive and legislative branches on national security, but there are exceptions. In the Pentagon Papers case (New York Times Company v. United States, 1971), the Court ruled that the New York Times and Washington Post could publish government documents showing that the executive branch was lying about the justifications for the Vietnam conflict.


The Court entered the national security fray when holding that President Eisenhower lacked the authority to seize steel mills during the Korean War (Youngstown Sheet & Tube Co. v. Sawyer, 1952).


More recently, the Court repeatedly ruled against the Bush Administration’s disregard for the due process of prisoners at Guantanamo Bay (Hamdan v. Rumsfeld 2006, Hamdi v. Rumsfeld 2004, and others).


But none of these exceptions turned on why the president did what he did. The Pentagon Papers was a classic freedom of the press case. Youngstown rested on whether Eisenhower was going against what Congress had authorized him to do. The Guantanamo Bay cases rested on due process, not on Bush’s personal motives.


The travel ban cases are different. Three different iterations of the ban came before the federal courts. All three were challenged on whether the Executive Branch had a rational reason to issue bans based on race and religion. The third ban did what the first two did not, citing extensive national security findings that citizens from these largely Muslim countries threaten our national security.


So the question was whether the Court could consider the personal beliefs of the president. This case was unique in that it was quite easy to read Trump’s tweets and speeches denouncing Islam. The executive branch has, until this time, simply not been as transparent about why it wants to execute laws in the way it does.  


This time, the Court knew that the executive order was based on Trump’s religious hatred, flying in the face of what the Constitution and federal statutes mandate, i.e. no discrimination on the basis of religion. It was crystal clear.


It was a five-to-four decision, and the dissent clearly details the religious animus behind the order. But I can’t quite bring myself to condemn this as a “Korematsu decision.” In Korematsu v. United States (1944), the Court deferred to the executive branch in incarcerating American citizens in gulag camps due to their Japanese ancestry. The Court was clearly dismayed by the executive order, but as Justice Potter Stewart noted, it is not the duty of the Court to strike down laws because they are offensive; there must be a constitutional basis.  


In reviewing the travel ban, the Court was clearly concerned that they were opening Pandora’s box if they authorized looking at the president’s personal intentions in executing his constitutional responsibility for national security.


What strikes me as depressing is that the Court must analyze this case as they would for a normal president, who actually believes in the Constitution. Were the Court to analyze this case as a factual matter, with a president who rejects everything the Constitution stands for, the result would surely be different.


The majority opinion lists a long line of executive decisions running afoul of the Constitution. Justice Anthony Kennedy’s concurrence begs Trump to stop being an affront to the Constitution.  


In a system of constitutional democracy, the Court will feel bound by the rule of law to defer to the president on national security matters, even if the Court intuits that the president has never read the Constitution. The Court is not the only vehicle to secure our rights. We the people share that responsibility through our votes. We cannot do this ourselves if we want to retain our democracy; we need our co-equal branches of government. But sometimes we must remember that the Court cannot always save us.

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