All things considered, the Supreme Court decision this Tuesday upholding the third iteration of President Trump’s signature travel ban was rather anti-climactic. Indeed, the language of the controlling statute really left no room for serious doubt as to what the proper outcome should have been:
Wherever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of al aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.
It is hard to conceive of any language that would be more absolute in its grant of power over immigration to a president. To be sure, there are constitutional constraints to a president’s power to arbitrarily disfavor members of one faith group or nationality, and the travel ban case applied to citizens from mostly Muslim countries. But, as the Court said, those countries did not have the capabilities to share information about emigrants with U.S. immigration authorities, so the risk to the U.S. was reasonably apparent and well within the power of a president to address by restricting their access to this country.
Of course, this case was largely about animus towards President Trump. Indeed, lower courts, which stopped enforcement of the ban, made a big thing about his campaign rhetoric, including his vow to bring about the “total and complete shutdown of Muslims entering the United States.”
But what those courts did was tantamount to opening up any presidential action to an inquiry into his motives and thereby create the possibility of unceasing hamstringing of presidential activity. Indeed, this approach continues to lie at the core of the anti-Trump “resistance,” and was seemingly embraced in several court decisions on the ban.
But the Supreme Court said on Tuesday that justices will ordinarily only look at whether the presidential action is neutral on its face and whether it applies to all religions and nationalities similarly situated.
So the Trump victory was more than just a reaffirmation of his immigration policy. It was a signal that challenging Mr. Trump’s programs based upon what he may or may not have said, rather than what his official orders say, will not be favored in the Supreme Court. We trust that Special Counsel Robert Mueller will take due note as he finishes up his investigation as to possible obstruction of justice on the part of President Trump.