The United States Supreme Court sided with the institution of the presidency over offended liberal sensibilities Tuesday when it announced it had decided, by a vote of five to four, to uphold the constitutionality of the Trump travel ban. It was instituted during his first days in office, but repeatedly struck down or enjoined by judges in lower courts.
Liberal activists had hoped the ban would be overturned by the high court because of Trump's tweets and comments he's made that allegedly show an anti-Muslim bias on his part. That complaint, while persuasive to several justices on the court's liberal wing, was not enough to carry the day.
"The text of the ban," wrote Chief Justice John Roberts in the majority opinion, "says nothing about religion" which some interpreted as a helpful reminder that the critics who claimed it was a "Muslim ban" were wrong. It is not however clear it would have mattered on either legal or constitutional grounds if they had been right, since the court found the president's national security powers on these matters to be broad and vigorous.
"The decision was obviously correct from both a statutory and constitutional perspective," said legal commentator Horace Cooper, a senior fellow at the Washington-based National Center for Public Policy Research. "The real disappointment is that not one of the progressives on the Court acknowledged that fact. All four were willing to use out of court statements to justify their decision."
Indeed, it was those "out of court" statements that many court watchers predicted might sway at least one nominally conservative justice to vote with the liberal bloc, denying Trump a victory. Few people like to be called racist and, one presumes, the activists agitating for a different outcome hoped emotionalism would triumph over the law.
What Cooper calls "out of court" statements do not, of course, carry with them the force of law. "When President Obama emphatically stated publicly that his signature healthcare reform was not a tax, but when government lawyers came before the Supreme Court and argued that it was indeed a tax," he says, "all four of the progressives accepted the 'in court' claim and ignored the 'out of court' statements."
What's really happened here is a victory for the power of the presidency against judges seeking to make law from the bench, something it is supposed to be beyond their charge to do. The Supreme Court repeatedly slapped down efforts to block the ban when they were made by judges at the district court level, but these judges were not, it appeared, getting the message.
Now the high court has acknowledged the president's power to determine, by grant of Congress, who comes into America as long as the policy is grounded in legitimate national security concerns. What sane person—which obviously leaves out of the equation a number of progressives who have opposed the ban merely because Trump was its author—is willing to argue that letting in almost anyone who wants to come to this country from a place ripped apart by civil war, filled with clerics and other societal leaders openly hostile to the United States, considered a haven for terrorist organizations, or any combination of the three should be allowed in on a tourist visa?
For their part, the justices in the majority offered no counsel on whether what Trump sought was wise policy. "The government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy," Chief Justice Roberts wrote. "We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."
The court's liberal bloc, on the other hand, used their opinions as an opportunity to expound on the merits and to give advice to lower court judges seeking to keep the matter alive. For them, the politics of the issue trumps (no pun intended) the law—and that is a dangerous thing, more dangerous even than what they believe the president has proposed. Without the law—vigorous, effective and clear—we have nothing to shield us from the caprices of the mob and from those who fashion themselves as social justice warriors committed to equality, liberty, and fraternity. For after that, as any student of history knows, comes the terror.
There are some, like billionaire progressive George Soros, who bankrolls a good deal of activity undertaken by the international left, who would prefer to see a world in which borders no longer mattered or perhaps even existed. Most Americans, however, would disagree. We like our borders and believe they need to be respected, even safeguarded. A recent poll by Rasmussen, taken in the midst of the uproar over the separation of children from adults who brought them through Mexico to America as asylum seekers, shows just over half of those surveyed now support the construction of a wall on the nation's southern border.
Immigrants have been, by and large, a good thing for America and for the American way of life. They've been the source of innovations now considered essential to how we live. It's a pity we cannot allow more of them into the country, especially those who are the best and brightest in other nations but who are blocked for one reason or another from rising because of religion, gender, creed, tribal affiliation, or ancestry. All that though has little to do with Trump's travel ban which, politics aside, is much more a national security measure than a statement about immigration policy.
Newsweek contributing editor Peter Roff is has written extensively about politics, culture, and the media for U.S. News and World Report, United Press International, and various other publications. He can be reached by email at RoffColumns@GMAIL.com and on Twitter @PeterRoff.
The views expressed in this article are the author's own.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
