President Donald Trump scored a clear political win with Tuesday’s U.S. Supreme Court decision on Trump v. Hawaii, a ruling that upheld his administration’s current travel ban. The policy, as currently framed, affects five Muslim-majority nations as well as North Korea and Venezuela. The court accepted the administration’s assertion that these countries do not provide adequate security vetting of their citizens and thus represent risks to U.S. national security.
The state came down on the losing side in Trump v. Hawaii, in that the 5-4 majority rejected its argument that the travel ban was illicit because it was driven by the president’s anti-Muslim statements, starting on the campaign trail.
If there was any consolation to be drawn here, it was that Chief Justice John Roberts took the opportunity to overturn Korematsu v. United States, the court’s 1944 decision that found the internment of Japanese-Americans to be constitutional.
In the majority opinion, Roberts disputed a minority contention that the travel ban was equally indefensible. However, he also dismissed Korematsu as a fatally flawed decision. That landmark ruling has sat unanswered for far too long, a travesty painful to many minority communities. Thankfully, it now can be relegated to the dustbin of history.
In the principal ruling, the court made it clear that, barring any prohibited move to establish a litmus test based on religion, the Constitution gives wide latitude to the president to control entry to the country, in the interest of national security.
That’s the bottom line — although the needed, strenuous pushback from Hawaii and other states that have intervened has curbed the policy from its most aggressive, original form to regulation that, at least on its face, passes constitutional muster.
It’s not as clear, however, what the repercussions of this decision will be, from the policy standpoint. In its own defense, the administration has argued that the latest version of the executive order is not a true ban because it allows for waiver applications that take specific circumstances under consideration.
There should be a path to admission for many people from the restricted countries who do not pose a threat and, in fact, would add their own positive experience to the American story. Whether or not there is yet such a path, one that treats people as individuals, remains to be seen.
The ruling was the long-awaited culmination of the lawsuit championed by Doug Chin, filed when he served as Hawaii’s attorney general. It challenged the policy’s apparent intent to discriminate based on religion.
But the court’s majority rejected the state’s arguments, including one that the president’s executive order violated the Constitution’s Establishment Clause barring the establishment of a religious preference or prohibition.
The justices disregarded Trump’s rhetoric and focused on the specific language of the policy, finding that the order did not single out Muslim-majority nations exclusively and restricted travel from two other nations as well: North Korea and Venezuela.
However, the administration should not construe the ruling as a free pass to expand the list uncritically. Even with the wide latitude for executive control of immigration, restrictions must be based on national security.
In addition, the government defended its order by pointing out its robust, case-by-case waiver process. New State Department numbers released Tuesday, though, show waivers have been rarely issued over nearly five month ending April 30. That waiver process, noted in Justice Stephen Breyer’s dissent, needs to be more robust.
This administration has demonstrated paltry consideration for how its policies and their abrupt implementations affect real people. This can be witnessed in the chaos at the southern border, as well as in this travel ban. A lack of concern for individuals can be consitutional, but it’s not always good policy — or in keeping with American values.
