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The Court and the Muslim Ban


As many of you will have heard, the Supreme Court issued an order today granting cert in the Trump travel ban case, while allowing it to go into effect for foreign nationals without a pre-existing relationship with the United States. This news is…not good, Bob:

The three most conservative members of the Court—Trump nominee Neil Gorsuch and Justices Clarence Thomas and Sam Alito—are nearly certain to rule the ban constitutional. All three justices dissented from the part of the Court’s order preventing the ban from being enforced against foreign nationals with a pre-existing relationship with the United States, and would have allowed the entire ban to go into effect this week. It would be shocking if any of these three justices held Trump’s ban to be unconstitutional.

With the four Democratic nominees likely to follow the lower courts in declaring the bans unconstitutional, the question is whether Roberts or Kennedy might be a fifth vote. We cannot be certain either way. But both the split of the 9th Circuit on partisan lines and the Court’s decision to hear the case are not very good signs. The smart money would be on a 5-4 decision upholding Trump’s travel ban as a legitimate exercise of presidential authority, despite the strong evidence of discriminatory intent.

Last week, the Supreme Court held that executive branch officials were immune from civil suits resulting from constitutional violations after 9/11. In his dissent, Justice Breyer detailed the ugly history, from the Alien and Sedition Acts to the internment of people of Japanese origin in World War II, of excessive deference to the executive branch during wartime. Specious national security justifications have time and again been used to justify the suppression of political dissenters and racial minorities while the Supreme Court has looked the other way. It is too early to know for sure, but Trump’s travel ban may well become the next cautionary tale.

Some liberals like the chances that Kennedy and/or Roberts will stand up to Trump here. I’m the other kind.

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