Critical Dharma for Thinking Minds
The Supreme Court ruled on Trump’s travel ban barring entry for nationals from five predominantly Muslim countries. The Court ruled in support of Trump’s travel ban. I contend that historically Trump v. Hawaii will be seen as the watershed case that provided the legal justification for Fascism in America.
The Court first announced that the law granting the President power to exclude foreign nationals “exudes deference to the President in every clause.” My interpretation is that this “exuding deference” becomes the underlying premise for the Court’s reasoning in every subsequent section.
2. The President has lawfully exercised the broad discretion grant- ed to him under §1182(f) to suspend the entry of aliens into the United States. Pp. 9–24.
(a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187.
The Court’s intention was to uphold Presidential power to exclude foreign nationals. It proceeded to do so based on the Court’s lowest Rational Basis standard, and dismissed Trump’s statements showing animus towards Muslims spoken during the campaign as having no notable effect on the ‘neutrality’ and ‘rationality’ of the language of the Travel Ban.
Here is the ruling on the “Establishment Clause”, or religious freedom section, of the Plaintiff’s case:
[HELD] (b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the cam- paign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the signifi- cance of those statements in reviewing a Presidential directive, neu- tral on its face, addressing a matter within the core of executive responsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. Pp. 26–29.
The Court then decides that it must examine Trump’s anti-Muslim statements during the campaign as it might have been reflected in the ‘neutrality’ of the Travel Ban provisions, and the authority of the President to make these determinations.
The Court considered that the Travel Ban was “neutral on its face” because it restricted travel by nationals from countries that provided insufficient data on the backgrounds of nationals who seek entry into the United States. The Court noted that all countries were surveyed for their data provisions, and that countries were added and removed from the list based on those standards for data provision.
The Court then applied the Rational Basis standard to determine whether, despite Trump’s ‘extrinsic statements’, the President had a ‘rational basis’ for excluding national from particular countries, and of course the Court found that it did.
For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of apply- ing rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. Pp. 30–32.
So the Court acknowleges that Trump’s anti-Muslim statements during his campaign were indeed unconstitutional, but using the Rational Basis standard, insists that the Travel Ban is was ‘rationally related’ to a ‘legitimate government interest,’, i.e. based on the necessity for certain kinds of background information.
Justices Sotomayer and Ginsberg dissented based on the Establishment Clause. It should be noted that the lower Court did not make a decision that included the religious issue. Therefore the Supreme Court had to decide whether the case should be decided on the Establishment Cause, that is, that the plaintiffs would have a reasonable chance of succeeding based on religious discrimination. Here is the dissenting Justices’ argument, that the Supreme Court ignored facts that would have established Trump’s anti-Muslim bias when he became President.
The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. 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, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
Justices Breyer and Kogan also dissented the grounds that the case should be sent back to district court based on evidence that the policy was not being applied in a neutral way. (from Vox.com)
The Court ultimately decided that if any Presidential order appears to be ‘neutral on its face’ and has a ‘rational basis’ related to a legitimate government interest, here defined as ‘national security’, then it doesn’t matter that there are racist, sectarian or other unconstitutional reasons stated for discrimination. The law granting the President’s authority exudes deference for presidential power, and so does the Court.
States Attorney Generals and the ACLU are challenging the President’s order to separate migrant children from their parents at the border. If the Administration can show that the order is ‘neutral on its face’ and has a ‘rational basis’, then it might be upheld by the Supreme Court, regardless of the fact that the UN says it amounts to the torture of children.
And now Justice Anthony Kennedy is resigning from the Supreme Court, giving Trump and the Fascists yet another opportunity to place a conservative Justice on the Supreme Court for life.
At this point, it almost doesn’t matter whether we impeach Trump, because the Supreme Court is doing his bidding, and the Justices of the Court, for all practical purposes, cannot be impeached. The Court just decided that labour unions cannot charge a ‘contract fee’ for non-members who benefit from union-negotiated contracts. It has decided two cases in which gerrymandering of voting districts to favor one political party over another is not unconstitutional.
Once Trump appoints a second conservative to the Court, there will be decision after decision that draws the US back into the kind of overtly racist, xenophobic, misogynist and authoritarian regime that it has been historically. If Trump is replaced by Pence, it could even be worse. We’ll have a Trumpian in office who is polite and unoffensive, but just as brutally racist, misogynist, xenophobic and even more homophobic than Trump. Then there will be no doubt in the mind of the Court that his use of Presidential authority is ‘rational’ and ‘neutral on its face.’
Through Trump v. Hawaii, the Supreme Court is telegraphing that any Presidential order or law that is ‘neutral on its face’ and has a ‘rational basis’ related to a ‘legitimate government interest’ will be upheld as ‘constitutional’, no matter how monstrous it is in its application and effects; almost any horrific policy can be justified on that basis.