The Supreme Court on Tuesday upheld President Trump’s counterterrorism related travel ban.
Writing for the 5-4 majority, Chief Justice John Roberts noted that Trump has the broad executive authority to impose his ban to further specific national security interests. Noting the ban’s absence of language related to Islamic-identity and thus the absence of a pernicious government intent, the court explains that “the entry suspension is an act that is well within executive authority and could have been taken by any other President.”
Moreover, Roberts explains that the plaintiffs argument renders ludicrous existing legal judgments over presidential power in relation to national security.
“On plaintiff’s reading,” Roberts notes, “… the entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to 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.”
[Mitch McConnell takes Twitter victory lap over Neil Gorsuch after Supreme Court upholds travel ban]
The court recognizes Trump’s more extreme language towards Islam in relation to the travel ban. But while it quietly laments that presidents have “performed unevenly in living up to those inspiring words [of the founders documents and thoughts],” the court cannot use Trump’s language to override his constitutional authority: “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.” The court’s position on this exigent concern is clear: Trump has the right to deny access to the United States on the national security grounds his proclamation identifies.
Of course, the emotion in this case is also clear. But when it comes to the plaintiffs’ most emotive of all claim (that Trump’s proclamation is tantamount to the Korematsu v. United States Supreme Court decision of 1944, which upheld the government’s right to put Japanese-Americans into internment camps) Roberts eviscerates Korematsu while explaining why the travel ban is different.
The simple takeaway here is that where the executive branch has identified a compelling national security interest involving foreign nationals, the president has has significant constitutional latitude to act in pursuit of that interest. That was the case here, the court says, and for that reason the case is closed.
