In the opinion on Trump v. Hawaii, the travel ban case released today, Justice Roberts, writing for the majority, explained that the executive order “is squarely within the scope of [p]residential authority.” While the legal reasoning outlined in the opinion establishes the president’s legal authority to issue his executive order to bar immigrants from certain Muslim-majority countries, it does not mean that the president should be pursuing such actions.
America is built on the idea of broad freedoms, including that of religious freedom, listed alongside the fundamental ideas of freedom of speech, freedom of the press, and the freedom of assembly in the First Amendment. Without adherence to these ideas, even when it comes to our government’s international affairs, America loses a fundamental claim of identity.
While the case is, strictly speaking, about the president’s authority on immigration policy, the justices felt they couldn’t ignore the context of President Trump’s fiery campaign, including his promise of a “total and complete shutdown of Muslims entering the United States.” A religious test for immigration would fly in the face of the American ideal of religious freedom. You can enter this country as long as you don’t subscribe to the wrong religion, is what a Muslim ban would say.
Chief Justice John Roberts seems to have recognized the danger of Trump’s stance on religious freedom and non-discrimination writing: “The president of the [U.S.] possesses and extraordinary power to speak to his fellow citizens and on their behalf.” He added, “Our presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this nation was founded.” Although Roberts goes on to acknowledge that presidents have at times strayed from these principles, his emphasis is clear: Just because a president is afforded wide reaching powers in the name of national security, it is paramount that the U.S. adhere to its founding principles.
As Justice Anthony Kennedy noted in his concurrence: “It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
