TrumpLaw and the Travel Ban

Not that “Justice Editor” at somewhat lefty ThinkProgress, Ian Millhiser, is prone to hyperbole, but the headline of his post on the Supreme Court’s decision in Trump v. Hawaii, gives some insight into his expectations of the Court and lawfare:

Chief Justice Roberts just proved why the courts won’t save us from Trump

What? You didn’t know that was Roberts’ job, to undo the election because the deplorables of America voted for this vulgar, ignorant, amoral, self-aggrandizing fool? Ian’s opening is similarly unflattering toward C.J. Roberts.

Chief Justice John Roberts is either a very stupid man, or he believes that the rest of us are very stupid.

In the first paragraph of Roberts’ opinion in Trump v. Hawaii, handed down on Tuesday, the Chief writes one of the most literally unbelievable lines to appear in a Supreme Court opinion: “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.”

And in fairness, writers who share Ian’s concerns about Trump’s blatant animus and are far more knowledgeable than Ian about immigration were sorely disappointed.

Under the court’s Trump-specific analysis, just about any official indignity that unduly burdens the lives of minorities or marginalized groups within our borders may well be tolerated. All the president has to do is not say the quiet part loud, issue an order that isn’t blatantly discriminatory, and maybe claim some national-security prerogative under existing law. Do those things, and legal success is virtually guaranteed. With the court taking this view, not even the Constitution can be expected to stand as a check on Trump.

The axiom, bad cases make bad law, was turned on its side in this case. In this case, a president who said outrageous and offensive things, part of the reason he was elected as they reflected the ignorance and bigotry of his “base,”  exercised a power that clearly belonged to his office.

The majority justices, no less committed to the amendment’s prohibition against government discrimination against particular religions, nevertheless emphasized the importance of distinguishing between the “statements of a particular President” and the “authority of the Presidency itself” — including Section 212(f).

Had another president done what Trump did, it would have been uncontroversial. But then, would any other person who attained the office of the presidency have been so flagrantly biased in doing so?

The court now justifies the broad authority of the political branches over immigration in terms other than naked racism. But papering over the racial origins of the political branches’ sweeping immigration authority can do only so much. While the ideas behind the plenary-power doctrine may no longer be acceptable (at least in certain circles), invoking the president’s near plenary authority over immigration allowed the court, in effect, to turn a blind eye to racism.

Granted it was religious discrimination here, not racism, but why bother with trifles? There is a conceptual ledge when the issue is immigration, that has become obscured by the language of the discussion. There are varying classes of people subject to the ban. Some, such as legal permanent residents, have very different rights than visitors, students or foreign nationals who wish to make the United States their new home.

Congress decided that not every person who wishes to enter into the United States gets to do so at will. Congress further decided that certain decisions about who gets to enter are vested in the office of the president. It would be fair to say that no one would have anticipated a person holding that office who was so flagrantly offensive in his bigotry and ignorance, and had the question been raised while such a person held office, Congress may well not have given that person the authority to make such decisions.

But the authority had already been established, before the madman took office.

Which is why the entry-ban case shows how the plenary-power doctrine enables presidents and Congress to get away with blatant racism in immigration decisions. As Justice Sonia Sotomayor observed in her dissent, the majority “blindly” accepted “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.”

This represents a division that’s come to permeate our politics. Does the end justify the means? Are we a nation of laws or men? Can there be such a thing as “TrumpLaw,” a rejection of the entirety of principled jurisprudence because this one person sitting in the president’s chair is so horrible, so unacceptable, so blatantly racist, that to give him the presumption of regularity as president would be suicide?

There are some who say that, who mean that, who believe with their broken hearts that this buffoon is the end of the world as we know it. And by issuing a decision that is stunningly correct and obvious for any person other than Trump, the Supreme Court has become complicit in his destruction of America rather than its salvation.

So what can be said in this moment? Perhaps this — that Mr. Trump’s travel ban is of a piece with the man himself. We may not be able to look into the president’s soul, but we can look at his words and actions over the last half century.

We’ve had bad presidents before. Evil presidents, one of whom sacrificed 58,220 lives in southeast Asia for a war he knew to serve no purpose and we could not win. His rhetoric was somewhat less outrageous than this one, but his actions were far worse. And still we survived.

The question posed to Chief Justice Roberts and the associate justices of the Supreme Court is whether their job is to sustain the institutions upon which a nation must rely if it is to survive this temporary occupant of the office, or burn the office to the ground because it’s currently held by Trump.

The majority chose to save the institution of the presidency rather than save the impassioned from this offensive moron. The Court saved the law, and through it, the nation. After Trump is gone, America will still be here, and will still be America. What we make of it after Trump is up to us.

48 thoughts on “TrumpLaw and the Travel Ban

  1. Gregory Smith

    Lot’s of flaws in this analysis. Firstly, expecting that separation of powers will serve as an effective check on at least some of Trump’s worst impulses is not equivalent to an expectation that Roberts or the SCOTUS will “undo the election.”

    Secondly, neither 212(f) nor any law is able to trump the Constitution, which clearly prohibits religious bias. Yes, Congress has given the President the power to limit who may enter the United States. No one takes issue with that. The problem is the criteria used to differentiate between those admitted and those excluded. In it’s third attempt at a Muslim ban, the Trump Administration effectively reverse-engineered non-religious criteria that nonetheless had the effect of a religion-based admissibility standard. DoJ lawyers argued that because the ban was based on these objective criteria (chiefly around the ability of the banned states’ ability to provide reliable information about visa applicants), the ban was Constitutional. So the question boiled down to whether the ban was actually based on the stated criteria (constitutional), or in fact on the religious criteria (unconstitutional) there is a large body of evidence that suggests was actually being employed. Some of the justices accepted that argument, others believed it was mere window-dressing. Certainly the removal of Chad from the list after changes by that country’s government were implemented supports the administration’s arguments and the majority opinion. But neither opinion falls afoul of the law — it was a judgement call, a role our constitution assigns to judges.

    1. SHG Post author

      This is where I feel badly about letting non-lawyers try to explain law when they have no clue what they’re talking about. Try the Plenary Power Doctrine. Law is hard.

      Remember, there’s always reddit, where others are similarly ignorant and non-lawyers can spew nonsense with impunity. But not here.

      1. Miles

        Not a chance redditors would tolerate this dope. It’s not his lack of grasp, but his astounding pomposity. You just want to reach through the screen and bitch slap him. Where’s Skink?

        1. Skink

          Sorry–travelling for depos far from the home swamp. In the Northeast, where things is stranger.

          No concern–the bouncers in the SJ Hotel lobby bar handled the fly.

        1. SHG Post author

          Now that you mention it, you bear a striking resemblance to RBG. Lawyertip: If even the four dissenting justices were in such simplistic agreement, they wouldn’t have filed separate dissents. And neither challenges the president’s plenary authority over immigration. Stop trying to play lawyer. You suck at it.

          1. losingtrader

            You have a real problem with non-lawyers explaining, and especially teaching, law.

            Is it feature or a flaw of your personality?

            1. Jay

              Everyone is an expert these days. I share some of the simplistic thoughts of other non-lawyers but regularly get reminded that I don’t know the law and I am thankful that Scott and the gallery are here to help us lose a bit of our ignorance.

              I work in the healthcare industry and it’s nails on a chalkboard listening to consumers try and have an informed discussion when there are so many factors at play. I would imagine SHG probably feels the same, especially when one of us non-lawyers attempts to act like an expert.

      2. Frank

        Not to mention there were a dozen ‘Muslim’ states, representing roughly 650 million Muslims, that aren’t part of the travel ban. The religious discrimination dog won’t hunt.

  2. Michael

    Given what Trump and his proxies said during the campaign, that this was intended as a blanket ban on Muslims which violated the Equal Protection Clause, how does the majority simply ignore the unconstitutional motive? He may have cleaned up his act by the third iteration, but doing a better job at framing discrimination makes it disappear?

    1. SHG Post author

      That’s the question. The difference between Trump and other presidents (like Nixon) isn’t that others weren’t ill-motivated, but had the good judgment not to say it publicly. Trump showed no such judgment. But then, was it merely campaign lies to get elected? Was it grounded in a sincere, if grossly mistaken, belief that all Muslims were evil terrorists? Korematsu, anyone?

      And even if it was the worst possible interpretation of Trump’s intent (which is likely), does that mean the president can never thereafter use his plenary power to perform the functions of the office? Will the motives of every president after Trump be suspect, his actions tied up in court by whatever state held by the opposite party disputes the president’s purposes and agenda?

      And lastly, there’s a backdoor problem that eludes discussion after Hawaii provided the requisite standing: non-resident aliens physically within foreign countries have no right to equal protection of law in the United States. They have no right to come here at all. People don’t like hearing this, but they’re not us.

      1. Dan

        “non-resident aliens physically within foreign countries have no right to equal protection of law in the United States”

        …and they also don’t have the rights protected under the First Amendment. But the progressives seem to studiously ignore both facts.

    2. Rigelsen

      Given that the travel ban did not cover the largest of the Muslim majority countries like Indonesia or Bangladesh makes it harder to presume it as a “Muslim ban”. (Or India, which happens to house the second largest Muslim population in the world.) Indeed, some counts put it as affecting only 8% of the world’s Muslims. I suppose you could make the argument that Trump and his DOJ were just spectacularly incompetent.

      Now, if Trump had actually forced his DOJ to enact a “blanket Muslim ban” per the most overheated of his campaign rhetoric instead of the much more limited and facially religiously-neutral one his DOJ actually implemented, there may have been more for the court to hang their hat on.

      Question for you: Many of the abolitionists and civil rights crusaders, official or otherwise, had religious motives and they hardly disguised this fact. Should that have made their legal legacy questionable under establishment clause jurisprudence due to their “unconstitutional motives”?

      1. SHG Post author

        What an interesting question! You should start your own blog where you can ask questions of anybody you want. But not at mine, k?

  3. Jay

    Well, the court certainly picked an interesting time to issue this ruling. I can appreciate they almost seem to be begging citizens to get out and vote.

    1. SHG Post author

      And they should vote. That is how it works. But will they vote for blind authoritarianism on the right, the left or will there be another option? That remains to be seen.

    2. Jim Tyre

      I can appreciate they almost seem to be begging citizens to get out and vote.

      Call me crazy or call me a cab, but I think there’s a very different reason why the decision was issued when it was. The oral argument was on April 25, one of the last (or, perhaps, the last) oral arguments of the current SCOTUS term. Particularly where the decision is contentious (meaning simply that it was a 5-4 split) the odds of it being decided before late June are zero. Approximately.

    3. MonitorsMost

      End of June is the end of term. It’s when all the remaining opinions are issued. And unsurprisingly, the big 5-4 cases are usually left to the end. It’s always been that way in modern Court history.

  4. Hunting Guy

    Robert Heinlein

    “You can sway a thousand men by appealing to their prejudices quicker than you can convince one man by logic.”

    1. Frank

      Gilbert and Sullivan were more succinct: “If you want to get a vote, scratch a bigot’s itch.”

      (When I Was A Lad, HMS Pinafore)

  5. Anonymous Coward

    Why are these people so surprised that a majority of a panel of judges voted in favor of established law and not hurt feelings?

    1. SHG Post author

      It’s wonderful that so many people are suddenly so very passionate about the plight of immigrants. It’s unfortunate they knew and cared so little about them until Trump, but that doesn’t mean they get to reinvent the law to suit their transitory passions.

  6. Richard Kopf


    The Court properly and pragmatically, in my view, elected to read the written order and largely ignore the background statements of he who shall not be mentioned The written words were not discriminatory and easily survived rational basis scrutiny.

    This seems just like the rejection of legislative history when the words of a statute are clear. Presidents make all sorts of nutty statements that are ultimately cleaned up by the policy wonks who implement Executive branch policy. And that is exactly what happened in this case with the facially neutral policy.

    Say, do you remember the following? President Obama: “If you like your plan, you can keep your plan,” referring to health insurance changes under the Affordable Care Act.

    All the best.


    1. SHG Post author

      While I hesitate to compare Darth Cheeto to any other elected official, I believe we will survive him. Whether we will survive TrumpLaw is another matter.

      1. Richard Kopf


        So, like are you saying our President is like the 14-Year-Old Rapper Suigeneris?

        All the best.


          1. Jim Tyre

            Justice Kennedy just announced his retirement. Can we start a movement for Judge Kopf to be the new nominee?

            1. SHG Post author

              Judge? Not sure where you can park the John Deere in DC, but at least it’s fun size so we should be able to find something.

  7. Nemo

    Clarity request on a point of fact:

    Presuming that the 58k number mentioned refers to the total number of deaths amongst US personnel in Viet Nam, as it appears to do, which of the presidents involved is the evil one responsible for them?

    In point of actual fact, Nixon can’t be blamed for more than about 21k of them. So is the evil one Eisenhower or Kennedy? Johnson, like Nixon, can’t be held responsible for the totality, as a significant number of those deaths predated him, too.

    Given those facts, which president are you calling “evil”, Eisenhower or Kennedy? Please explain.



      1. Charlie

        While the vast majority did occur during 66-71, Nixon was president only from 69-74, and deaths in ’67 and ’68 accounted for about half the total, according to the link.

        1. SHG Post author

          We didn’t know it couldn’t be won until the Pentagon Papers, which ended in ’67, so LBJ had his share of deaths, but didn’t send boys to die knowing that the war was unwinnable until the very end. So that’s why Nixon.

          1. Nemo

            Yes, Nixon. Just not all 58k deaths. He cannot be held responsible for the deaths that occurred before he took office for the first time in ’69. To do so, you must necessarily engage in ex post facto conviction.

            1966 and 58k are factually incorrect.



            1. SHG Post author

              Yes, Nemo. On this tangential point, I was factually incorrect as Nixon can’t be held responsible for all 58k deaths. Do you realize how you’ve gone off on a tangential point and contributed nothing to the substance of the post?

            2. Scott Jacobs

              Yes, but he can now claim to have been right while you were wrong, and there don’t seem to be very many people who can make that boast.

      2. Wrongway

        I have a suspicion that this was an attack by the, … “Wargaming-Number-Nerds” … I fly in online Sims & do the facebook follow thing, & yeah while maybe they should’ve been lawyers, they’re not.. but they do know their numbers… yeah, just avoid those,”what was the most produced plane during WWII ??!!” questions..
        so don’t let this new thing (UPRISING!!) surprise you..
        a very fun group, but they’re schmuks in the long run …
        maybe we’ll see a new Political Party emerge… man that’d be hilarious..

  8. Justin

    The obvious counterpoint to Ian Millhiser is that Obamacare was upheld as valid under Congress’ tax power when Democrats spent the better part of a year saying it wasn’t a tax. then it was upheld after the messy rollout caused Obama to start delaying the implementation of the law to mitigate some of the other effects they swore wouldn’t happen. So I would just eighty-six the idea that politicians’ words on the stump qualify as a basis for SCOTUS to “check” them.

    1. Scott Jacobs

      I’ve always wondered why the second the Mandate was ruled to be a tax there wasn’t a lawsuit challenging the constitutionality of the law on the grounds that bills regarding taxation can’t start in the Senate.

  9. Miles

    You’re going soft, amigo. Between the butthurt dick Smith and this asshole, the comments are becoming way too reddit for lawyers. You need to start trashing with extreme prejudice. Both these guys should go, as well as your buddy, Jake. They contribute nothing and suck up too much space.

    Man up. Do what you’ve got to do. Just do it.

    1. SHG Post author

      I don’t so much mind that they comment, but they just don’t stop. Yeah, it’s getting out of control.

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