//  12/8/17  //  Commentary

By Professors Vicki Jackson (Harvard Law School) & Judith Resnik (Yale Law School)

As litigation against the revised travel ban moves forward, the Supreme Court’s decision Monday to stay the lower court orders in the Fourth and Ninth Circuit litigations—without exceptions previously insisted on for persons with established bona fide connections to the United States—seems to signal that a majority of the Court may now be prepared simply to defer to the presumed expertise and competence of the President over foreign affairs. This would be a tragic mistake.

There are many cases in which the Supreme Court has indicated that ordinarily, deference and respect are owed to the President’s decisions, especially in military and foreign affairs, including in immigration.[1] The Court has also repeatedly invoked a “presumption of regularity” in cases challenging the legality of challenged executive action.[2] But deference to the President is not absolute.[3]

In the context of evaluating the lower court decisions addressing the legality of President Trump’s actions with respect to the immigration ban, the Supreme Court should not rely on ordinary presumptions of deference or regularity. From the time that this President took office, he has pursued actions that have fed religious and ethnic prejudice. And even as the challenges to the third travel ban are pending, the President has continued to inflame hostility based on religion, in apparent advancement of his anti-Muslim campaign rhetoric.

On November 29th of this year, the President circulated videos about supposed “Muslim” actors, videos designed to promote hatred of or hostility to Muslims as a group, based on their religion. The source of the videos was a far-right group in the United Kingdom whose leaders had, under UK law, been banned by judicial order from entering mosques and one of whose leaders had been “convicted of ‘religiously aggravated harassment.’”[4] This action represents a repudiation of a central piece of the American constitutional tradition, going back to the Founding and the First Amendment’s protection for the free exercise of religion, and reinforced and made more central by the commitments of the Fourteenth Amendment and case law interpreting that Amendment to make equality of all persons vis-a-vis the government a core tenet of our constitutional law.  And the President has engaged in many other actions inconsistent with the importance of a free press and freedom of expression,[5] and with constitutional commitments to resolving disputes through law,[6] rather than violence;[7] his Administration has also acted in ways inconsistent with American traditions of open government.[8]

The contempt and disregard for these constitutional and legal traditions—shown repeatedly and as President by this President—are well-known, in the United States and in the world. His words and actions on these subjects are open and notorious. They have brought our country into disrepute. 

The Administration’s efforts to hide information and intimidate the press make only more pressing the need for courts to respond appropriately where illegitimate motives appear on the surface of executive branch action. This is not the first time that national origin has been used as a proxy for threat; but the Court’s failure to invalidate the Government’s mass action against Japanese-American citizens during World War II has come to be seen as a failure to uphold the country’s constitutional commitments to fair treatment.[9]


[1] See, e.g., Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 348 (2005) (referring to the Court’s “customary policy of deference to the President in matters of foreign affairs”); Loving v United States, 517 U.S. 748, 768 (1996) (referring to the “respect owed to the President as Commander in Chief”).

[2] See e.g., Hartmann v. Moore, 547 U.S. 250, 265 (2006); U.S. Postal Service v Gregory, 534 U.S. 1, 10 (2001); U.S. v Armstrong, 517 U.S. 456, 464 (1996).

[3] See, e.g.,  Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (O’Connor, J., for the plurality); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); id. at 638-45 (Kennedy, J., concurring in part).

[4] Dan Bilefsky and Stephen Castle,  British Far Right Group Exults over Attention from Trump, NY Times,  Nov. 29, 2017, https://www.nytimes.com/2017/11/29/world/europe/britain-first-trump.html?action=click&contentCollection=Europe&module=RelatedCoverage&region=EndOfArticle&pgtype=article

[5] See, e.g., Hadas Gold, Free Press Groups Warn of Violence Against Media, Politico, July 4, 2017, https://www.politico.com/story/2017/07/04/trump-violence-against-media-free-press-240211 (describing the President’s communication perceived as intimidating or encouraging violence against the press); Brian Tashman, Donald Trump Thinks the First Amendment is ‘Disgusting,” ACLU Speak Freely, Oct 13, 2017, at https://www.aclu.org/blog/free-speech/freedom-press/donald-trump-thinks-freedom-press-disgusting (providing link to tweet by Donald J.Trump, @realDonaldTrump (threatening revocation of network broadcast licenses because their news is “partisan, distorted and fake”)).

[6] See, e.g., Tristan Lejeune, Trump attacks “so-called judge” over travel ban ruling,” The Hill, Feb. 4, 2017, http://thehill.com/homenews/administration/317899-trump-attacks-so-called-judge-over-travel-ban-ruling

[7] On the President’s apparently urging the police to use inappropriate force, see Brian M. Rosenthal, Police Criticize Trump for Urging Officers not to be “too nice” to suspects, N.Y.Times July 29, 2017, https://www.nytimes.com/2017/07/29/nyregion/trump-police-too-nice.html?_r=0.

[8] Hadas Gold, Free Press Groups Warn of Violence Against Media, Politico, July 4, 2017, https://www.politico.com/story/2017/07/04/trump-violence-against-media-free-press-240211 (describing concerns over efforts to limit media access); Michael Wines, Voter Fraud Panel Is Sued Again, this time by a Member, New York Times, Nov. 9, 2017 https://www.nytimes.com/2017/11/09/us/white-house-voter-fraud-panel-lawsuit.html (reporting that Democratic member of supposedly bipartisan committee is suing over having been denied information about its activities in violation of federal law requiring equal access to information for all members); Ben Wolfgang, EPA Blocks Scientists from Giving Talk On Climate Change , The Washington Times, Oct.23 2017, https://www.washingtontimes.com/news/2017/oct/23/epa-blocks-scientists-giving-talk-climate-change-r/

[9] See Noah Feldman, Why Korematsu is Not a Precedent, Nov 18, 2016, N Y Times, https://www.nytimes.com/2016/11/21/opinion/why-korematsu-is-not-a-precedent.html?_r=0; see also Personal Justice Denied, Report of the Commission on Wartime Relocation and Internment of Civilians 3 (1982) (noting the removal of 120,000 Japanese American from the West Coast without individual hearings during World War II and the Supreme Court’s upholding of this exclusion even though “not a single documented act of espionage, sabotage or fifth column activity was committed by an American citizen of Japanese ancestry or by a  resident Japanese alien on the West  Coast”)

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