Today’s Supreme Court decision upholding the President’s authority to ban people from specified Middle Eastern countries from entering the United States is upsetting, perhaps—but it’s pretty clearly the right legal decision. The travel ban may be cruel and stupid, but the President has the constitutional authority to be cruel and stupid in many ways, and this is one of them.
The arguments against the travel ban basically boil down to two: 1) does it amount to religious discrimination that violates the First Amendment? And 2) does it violate the Immigration and Naturalization Act, a federal statute that allows the President to bar the entry of “all aliens or any class of aliens” if he “finds” that their entry would be contrary to the national interest. That word “finds” is really important, as we’ll see.
The First Amendment argument has always struck me as silly. It’s a stretch to say that the Amendment—which forbids Congress from creating a national church or from hindering the free exercise of religion—has anything whatsoever to say about entry into the U.S. by foreigners. The idea is supposedly that by banning people of particular religious group, the President is discriminating on the basis of religion and that this “prohibits the free exercise” of religion and establishes a religion (Christianity) for the United States. It doesn’t—people are just as free to practice their religion after the imposition of the travel ban as they were before. Worse yet, consider what a contrary ruling would mean: if a church announced that it was an article of its faith that members devote themselves to violence against the U.S., the President wouldn’t be able to bar them from entering the country, because doing so would constitute religious discrimination? This is plainly absurd, and would, at a minimum, encourage those with a desire to harm Americans to dress up their beliefs as a religious creed in order to evade military cordons. In fact, such a ruling would create the paradoxical effect that a person with religiously-motivated intentions of harming the country could not be barred—while a person who intends harm because he is a Marxist or holds other purely secular desires to harm the country could be. That would itself be religious discrimination.
Obviously the First Amendment does not mean any of this. Indeed, it is hard to imagine how a restriction on foreign nationals entering the United States could ever be an establishment of religion—since it doesn’t force anyone to embrace or subsidize a religious viewpoint—or a restriction on free exercise, since it would leave people just as free to practice their religion as they were beforehand, and does not condition a government grant on the surrender of religious rights.
True, it’s almost certain that the President adopted the travel ban out of plain hostility toward Islam. But as the Court correctly notes, the question is not “the statements of a particular President,” but “the authority of the Presidency itself.” As commander in chief and as the primary executive officer responsible for ensuring the enforcement of the laws, it is within the President’s authority to make decisions—including barring the entry of foreign nationals—so long as his decisions are “plausibly related to the Government’s stated objective to protect he country.” He can exercise that authority stupidly, but it’s his authority to exercise.
The second argument is the stronger one: that the President’s actions violated the Immigration and Naturalization Act. The argument here is that he failed to make any “findings” about the national interest, and therefore that his order was too precipitate. The Court rejects that argument, concluding that the White House’s actions were adequate to satisfy the “finding” requirement. Trump “first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments—several of which are state sponsors of terrorism—deprive the Government of ‘sufficient information to assess the risks [those countries’ nationals] pose to the United States.’” Again, one may disagree with those findings—but they’re his to find, and he found them. That’s all the statute requires. That’s a persuasive conclusion—and the dissents seem not to make any serious effort to rebut it.
And such a rebuttal is hard to make. It’s obviously critical that the President have the power to restrict entry into the country in emergencies. As the Court notes, the argument of the travel ban’s challengers would run the risk of tying the President’s hands so much that he couldn’t “suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.” That’s not reasonable, and it’s not consistent with “[c]ommon sense and historical practice.”
Thus the Immigration and Nationalization Act regulates the President’s authority without totally extinguishing it. It bars certain types of discrimination in admissions to the U.S., while allowing the President to bar entry whenever he finds it necessary to do so. Reading the statute that way implies that the “findings” need only be pro forma—even mere suspicion would suffice. That’s a reasonable reading of a law that’s supposed to balance the needs for fairness with the need to preserve strong national security options.
This is one of those cases where one must admit that something stupid and wrong isn’t necessarily unconstitutional. The executive power that the Constitution gives the President is an expansive and dangerous power—which is just why it’s so important that we not choose bad people as President.
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