The Supreme Court’s 5-4 decision to uphold President Donald Trump’s travel ban was a narrow ruling, but an important one. By deciding not to consider Trump’s anti-Muslim statements while a candidate and not to address the public policy concerns relating to the ban, but instead to analyze the issue from the standpoint of presidential power, the court correctly upheld the principle that as commander-in-chief the president is responsible for protecting U.S. borders.
That is the simple reading of the actual text of Trump’s executive order, which restricts immigration to the United States by citizens from seven countries, including five with Muslim majorities. In his majority opinion, Chief Justice John Roberts made clear that the ruling was a narrow one, regarding only the prerogative of the executive: “For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”
His emphasis that the decision was not a judgment on the wisdom of the president’s travel ban was perhaps a bone thrown to those, like ourselves, who view Trump’s immigration policies as xenophobic and cruel. The decision was certainly far from a “profound vindication” for the president.
In her dissenting opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, focused more on emotion than law, and read into the case Trump’s anti-Muslim campaign pledge to impose “a total and complete shutdown of Muslims entering the United States.” In the face of such animus, the administration’s national security concerns were a “facade,” a “repackaging [that] does little to cleanse [the proclamation] of the appearance of discrimination that the President’s words have created.”
This was the third travel ban the administration proposed, after two earlier executive orders were struck down by the courts. We believe the Supreme Court correctly concluded that while the ban under consideration may be lipstick on a pig, it is not a religious ban. Indeed, if the court had considered candidate Trump’s anti-Muslim campaign comments, it would have set a dangerous precedent of viewing a president’s policies through what he says as a candidate in order to get elected. That might make sense in the age of Trump, but what about when someone else occupies the White House?
Like many of the court’s decisions late in the term, this one was measured, which is exactly how the court should function. Noting that just a day after the ruling, Justice Anthony Kennedy announced his impending retirement, we hope that whoever replaces this most balanced of voices on the highest bench in the country will not veer very far from his measured path.