Wednesday, June 27, 2018

The (Muslim) Travel Ban: Trump v. Hawaii

Analyzing the Decision 
Mourning Something Lost in America's Identity and Ideals.

One of my friends, Prof. Richard Reuben -- who serves on the faculty of the University of Missouri School of Law -- has offered these insights. Earlier in his career, Richard was an award-winning journalist who covered the U.S. Supreme Court.

"A few thoughts after having read the travel ban decision, [Trump v. Hawaii, Slip Op. No. 17-965 (June 26, 2018):]

1. It is not surprising to see the Supreme Court back executive power in the context of international affairs, and especially so in the context of national security. I tend to agree with this in principle.

2. Chief Justice Roberts' decision was an embarrassment -- deliberately shallow, both in accepting Trump's results-oriented "policy consideration" and in its paucity of reference to precedent. The reason seems pretty obvious. As been our history until this day, most of that precedent goes against his decision.

3. The lack of rigor is probably the most disturbing part of the opinion. For example, Roberts stressed national security, but there was no evidence, anywhere, of an actual national security risk that was in any way greater than that which we endure every day. The only difference was who sits in the Oval Office.

A stronger opinion reaching the same outcome could have been written, and Roberts' failure to do so constitutes an abdication of the judicial role. A judge not only has the duty to decide, but also to persuade that its decision is correct. A written and reasoned opinion is essential to the legitimacy of the decision. By any measure, the Roberts fails that test.

4. The court's decision to reject the Establishment Clause claim was naked judicial activism because the issue was not decided below. It's decision to reverse Korematsu was even worse because, as Roberts conceded, it wasn't even argued by the parties. Rather, the decision to reverse was occasioned only because the dissent brought the case up. What's next, Plessy v. Ferguson?

5. Justice Kennedy was in the five-justice majority. He has always been bad on race, and this is just another example.

6. The travel ban is now up to Congress. The opinion was almost entirely an interpretation of a statute. Congress can overrule that interpretation. The Republican Congress will not do that, of course.

7. American democracy is now on life support, and this decision removes one of the tubes by abandoning a strong judicial role. If the Republicans keep Congress this fall, and Trump wins another term -- more likely if the Republicans keep Congress -- the American experiment in democracy that began in 1776 will be over."

Copy of the decision here.

For another summary of the ban, see here and here

For a summary of Justice Sotomayor's dissent, see here. Her dissent concludes by saying:
By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.
Effects of travel ban here.

Thoughts coming from the Muslim community, here.

Another point of view here.

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