Strong Dissent in US Supreme Court decision to uphold Trump's Muslim Travel Ban

Public Law
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Justice Sotomayor (with Justice Ginsburg concurring) held that, only by ignoring President Trump's prior statements antagonistic to the Muslim religion, could his Executive Order banning entry to the US to residents of eight muslim majority countries be justified on national security grounds, rather than be seen as in breach of the First Amendment's requirement that government be entirely neutral in favouring or disfavouring particular religions.

At p. 65 of the decision which can be found at TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. HAWAII ET AL. 585 U. S. ____ (2018) Sotomayor J said:

"The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent."  

Her Honour noted (at p.71) that when signing the first version of the Travel Ban, Trump read out the title of the Executive Order:

“Protecting the Nation From Foreign Terrorist Entry Into the United States.” 

and said:

“We all know what that means.” 

After the implementation of that Executive Order was injuncted in the lower courts (which injunction was upheld on appeal) the Administration declined to further defend that Order and issued a revised form of Executive Order, which became the subject of this proceeding.

Her Honour set out the myriad statements of the President, both as candidate, and while in office, that unequivocally establish that the second iteration of the Travel Ban, was intended as a continuation of the first Executive Order, but was crafted in an attempt to avoid the legal pitfalls of being expressed as a "Muslim Ban" on entering the USA.

Sotomayor J noted the occasions on which the President or his spokespeople were given the opportunity to disavow his prior statements about the Muslim faith. She continued at p.76:

"Instead, he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its follow­ers. Given President Trump’s failure to correct the rea­sonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s law­yers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint."

She said at p.66:

"Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering the United States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers."

At p.90 Sotomaoyor J described the majority's decision as:

"Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States, 323 U. S. 214 (1944)."

Korematsu was the decision in which the US Supreme Court upheld the internment of US citizens of Japanese descent during World War II. In the current decision the Supreme Court held Korematsu to have been wrongly decided.

Her Honour continued at p.92:

"Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi­natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another."

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Michael Wise QC practises in commercial law and intellectual property law

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