In the final two decisions of the Supreme Court’s 2017-2018 term, the necessity of appointing judges dedicated to the rule of law rather than social justice is starkly apparent. In Trump v. Hawall,the “travel ban” case, the sole issue, despite the wails of the Left and the political pronouncements of leftist judges, was whether the President of the United States–any POTUS–has the power to regulate immigration for America’s benefit. The majority decision is unambiguous: presidents do. From the decision:
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens when- ever he finds that their entry ‘would be detrimental to the interests of the United States.’ 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment.
The court, by 5 to 4, ruled that the president does indeed have that power, and “because Trump” cannot prevail over the law and the Constitution. The decision notes Mr. Trump’s comments on Muslim immigration made during the campaign, before he became president, but also notes those comments have no bearing on the constitutional issues involved. 8 USC 1182 is available here.
Chief Justice Roberts also made short work of the idea that Mr. Trump was discriminating against Muslims: it’s irrelevant even if it were true (it’s not). He noted the travel ban affected only a tiny portion of all Muslims, and several countries, due to their adherence to American immigration requirements, had been removed from the ban list. Several countries on the list are not Muslim countries at all. In fact, Justice Roberts observed that so clear are the President’s powers, the Court likely lacks jurisdiction to review the case. More from the decision:
1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Cen- ters Council, Inc., 509 U. S. 155. Pp. 8–9.
2. The President has lawfully exercised the broad discretion granted 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 Proclamation falls well with- in this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered aliens ‘would be detrimental to the interests of the United States.’ The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.
Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching in- quiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.
The dissenting opinion is embarrassing. It is not an exposition on the law, but a political document, essentially arguing “but Trump!” John Hinderaker at Powerline agrees:
The ruling is obviously correct. Chief Justice Roberts wrote the majority opinion. Roberts begins where he should, with 8 U.S.C. § 1182(f), which gives the President broad authority to restrict the entry of aliens whenever he finds that their entry ‘would be detrimental to the interests of the United States.
2. The fact that four justices dissented is extraordinary. Their grounds are, in my view, pretextual. Justice Breyer wrote a dissent that strikes me as halfhearted. He goes on and on about the implementation of the travel order, in a manner that is entirely unpersuasive. He says that he would have sent the case back to the District Court for more fact-finding
3. Justice Sotomayor wrote the dissent that Democrats were hoping for. It is a fiery denunciation of President Trump, but one that includes little material relevant to the case. She quotes, at great length, statements that candidate Donald Trump made during the campaign about wanting to restrict all Islamic immigration. One problem, of course, is that the order at issue doesn’tbar all Islamic immigration–it affects only a tiny percentage of it. The fact (if it is a fact) that Trump would have preferred to issue a different order, obviously can’t make the order he did issue unconstitutional.
Justice Sotomayor and Justice Ginsberg, who joined in her dissent, do not shy away from the conclusion that if another president had issued the same order, it would have been valid and constitutional. It is only Donald Trump who can’t issue this proclamation, on account of various statements he made that the justices interpret as being hostile to Islam. If Hillary Clinton had issued the same order, it would have been fine.
I therefore see the Sotomayor opinion (and the Breyer opinion, too, although it is more circumspect) as political, not legal, documents. They reflect the Democratic Party’s continuing refusal to accept the result of the 2016 election. In their view, Donald Trump isn’t really our president: he doesn’t have the powers that any other president would have.
4. Sotomayor went so far as to cite the Korematsucase, which upheld the internment of Japanese citizens during World War II, as analogous to Trump’s travel ban. The analogy, as Chief Justice Roberts rightly points out, is absurd. Again, Sotomayor’s only plausible purpose was political, not legal.
The Korematsu case (1944) is not one of the Supreme Court’s prouder moments. In the aftermath of Pearl Harbor, Japanese Americans were deprived of their property and liberty and forced into internment camps. The Court held that clear violation of the rights of American citizens constitutional under FDR’s war powers. It was Democrats that deprived Americans of their liberty.
Justice Sotomayor’s–the wise Latina’s–invocation of the case is of a piece with contemporary leftist labeling of Mr. Trump, and anyone seeking enforcement of America’s immigration laws, as Nazis. There is no comparison.
In the 1940s, an entire class of Americans were denied their constitutional liberties primarily because they were of Japanese descent. In the Travel Ban case, foreigners, non-Americans, people that had never lived in or set foot in America, were being temporarily denied entry into the country until their identities could be positively confirmed, and any danger they might pose to the United States properly vetted. America has no obligation to admit any foreigner. They have no constitutional rights. That a justice of the Supreme Court would draw such a parallel suggests she is historically illiterate, unable to discern the core of legal issues, and a political partisan, uncaring about the law as long as her political views are vindicated. Thankfully, the majority of the Supreme Court finally corrected the damage of Korematsu.
The second case, Janus v, American Federation of State, County, and Municipal Employees, Council 31, addressed, finally, a long-standing controversy: can non-union members be forced to pay an “agency fee” to unions. Mark Janus, an employee of the Health and Family Services agency in Illinois argued that he should not be required to support a union using his fees for political stances against his beliefs. The Aboodcase (1977) held agency fees constitutional. Just as the Court reversed Korematsu,they reversed Abood. Fox News reports:
The conservative majority said a union’s contract negotiations over pay and benefits were inextricably linked with its broader political activities, and concluded workers had a limited constitutional right not to underwrite such ‘speech.’ The case specifically examined union fees paid by non-members.
‘This procedure violates the First Amendment and cannot continue,’ Associate Justice Samuel Alito wrote in the majority opinion. ‘Neither an agency fee nor any other payment to the union may be deducted from a non-member’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.
Justice Alito explained:
Alito said while overturning past decisions should be rare, this issue justified it.
‘There are very strong reasons in this case. Fundamental free speech rights are at stake,’ he said.
These decisions should have been unanimous. The issues were clear and compelling. It is the job of Supreme Court justices–actually, any judge–to make decisions based only on law and the Constitution. Precedent is important, but not holy writ, and when precedent violates the Constitution, as it did in these cases, it must be overturned, even if it takes 74 years (Korematsu) or 41 years (Abood). Consider this from Justice Sotomayor’s dissent:
Almost all economic and regulatory policy affects or touches speech,’ Kagan added. ‘So the [court] majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance-including over the role of public-sector unions.
Either the Constitution protects speech or it does not. If it does not, such arguments are a matter of political policy, but if it does. American’s can’t be forced to support speech with which they disagree. Unions will lose revenue, but that’s not an issue for the courts. They must find other ways to sell their services rather than using the power of the state to force unwilling citizens to subsidize them.
The current Supreme Court seats four progressive activists. Progressives see the Court as just another means of imposing their policies when they can’t get them legislatively. Such judges are black-robed super legislators. That’s why they fight tooth and nail to prevent seating judges that will honor their oaths of office.
Now that Justice Anthony Kennedy has announced his retirement, effective July 31, the battle over whether Supreme Court justices should follow the law or politics will be once again joined. We’re going to see what’s beyond Nazi/Hitler, for whoever Mr. Trump chooses, he, and they, will certainly be smeared with even worse invective. What’s the left’s next step beyond violence? We’re about to find out. We’ll also see if Senate Republicans are smart enough to confirm a constitutionally grounded justice before November. We’ll also see if Jeff Flake and John McCain will spit in America’s face to spite Mr. Trump.
In the Travel Ban case, even the progressive minority allowed that Mr. Trump’s decision would have been within presidential powers if made by any other president, but this case is different because of the legal theory: Trump. If our Republic is to survive, all courts must honor the Constitution, and base all of their decisions on the rule of law. “Because Trump” is social justice, not actual justice.