Today’s 5-4 Supreme Court decision to uphold the so-called “travel ban” hinges on the majority’s discounting President Trump’s repeated discriminatory statements and crediting his supposed national security concerns.
The majority donned blinders to take at face value and without context the words in the third version of an executive order banning people from certain Muslim-majority countries from entering the United States. No weight was accorded to Trump’s call as a candidate for a “total and complete shutdown of Muslims entering the United States,” as well as his statement while president that the “travel ban…should be far larger, tougher, and more specific” even though “stupidly that would not be politically correct.” The dissenting opinion of Justice Sotomayor, joined by Justice Ginsburg, noted: “a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.”
Justice Breyer, joined by Justice Kagan, suggested a functional test to determine if the ban truly rests on security needs or excludes Muslims because of their religion: whether it has allowed for exemptions and waivers as with past travel restriction orders.
Breyer cited State Department statistics that only 2 out 6,555 waivers were approved in the month after the third order was issued as well as the near stoppage of refugee admissions from travel-ban countries as signs of broad discriminatory intent without reasonable exceptions. He also cited a sworn affidavit from a consular official asserting that he and other officials do not have discretion to grant waivers, but that “the waiver [process] is merely ‘window dressing.’”
So, where do we go from here? Vigilance. The third branch of government, the US Congress, needs to ensure that harmless people affected by this overly broad ban are not harmed. If the travel ban’s purpose is to ensure the security of the United States, then, by all means, keep the bad guys out. But Congress should make sure the executive branch grants reasonable waivers and exemptions for everyone else. It should make legislative and regulatory corrections, as necessary, to ensure that the vast majority of people from these countries with legitimate, benign reasons for visiting, should be allowed, dare I say welcomed, to come here.