On Travel Ban, Supreme Court Must Restore Sanity

The infamous “Trump Travel Ban” case went before the Supreme Court on Wednesday, setting the stage for a ruling that will either give extraordinary legitimacy to the liberal activists on the 9th Circuit or restore executive power to its rightful place. While we won’t know for some time how the court will come down on the ban, we have a few clues that could give us some insight. One of those clues comes in the court’s willingness to lift injunctions against the ban that have been placed against the administration by the lower courts. Another, though, comes in the reaction several of the conservative Justices had to the case during Wednesday’s hearing.

The heart of the case is whether or not the latest version of the travel ban, which affects travelers from five majority-Muslim countries (as well as North Korea and Venezuela), is rooted in a violation of the First Amendment. In other words, is this travel ban in effect the “Muslim ban” that Trump called for on the campaign trail? Or is there enough daylight between that campaign rhetoric and the executive order to let the ban stand as it is?

According to Hawaii’s lawyers, who are the plaintiffs in the case, the answer is clear.

“Any reasonable observer who heard the President’s campaign promises, read his thinly justified orders banning overwhelmingly Muslim populations, and observed his Administration’s persistent statements linking the two, would view the order and each of its precursors as the fulfillment of the President’s promise to prohibit Muslim immigration to the United States,” they said.

But the Court’s justices seemed hesitant to swallow that view. Justice Neil Gorsuch said it was not within the scope of a federal judge’s purview to suspend the travel ban nationwide, which could give us a hint as to where his sympathies lie. Similarly, Justice Samuel Alito remarked that while five of the countries on the ban list were majority Muslim, the Trump administration had left another 45 or so majority-Muslim countries off the list.

“This does not look at all like a Muslim ban,” he said.

We’ll find out in June how the Supreme Court rules, but to us, this is an open-and-shut case. Frankly, we think a solid legal case can be made even for a full and complete Muslim ban, the kind of which Trump talked about on the trail. Certainly, there is ample evidence that Muslims as a group are more likely to be engaged in anti-Western terrorism than any other single religious sect. A temporary shutdown would not necessarily be out of bounds, even if it would be difficult-to-impossible to actually enforce.

But that’s not what this is. Like Alito said, there are dozens of Muslim countries that are not on the list and two non-Muslim countries that are. Furthermore, no Muslims from any other country are affected by any iteration of the ban. To rule against Trump in this case, you have to use his campaign rhetoric. To do that, you must establish the legal precedent that if a candidate says something (potentially) unconstitutional at any time, it invalidates his right to take any action in that area, no matter what the action is or how legal it might be. That’s absurd. Even so, we’ll look forward to seeing how many of the court’s liberal justices beclown themselves by arguing that exact point.