//  7/3/18  //  Uncategorized

Some of the worst constitutional decisions in U.S. history share key features.  They are numbingly technocratic; they rarely speak in terms of constitutional values or democratic principles; and they read like a sleight of hand.  You have to parse them carefully to understand their practical impact on people. 

Hawai’i v. Trump reads this way.  The opinion is a clinical discourse on separation of powers doctrine and the limits of judicial authority in the sphere of national security.  For example, there is this doozy in reference to Trump’s repeated statements explicitly denigrating Muslims: 

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition.  But the issue before us is not whether to denounce the statements.  It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.  In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. 

One might forget for a nanosecond that the Court is referring to a “particular” President who openly and proudly traffics in white supremacy and hate-mongering.  Hawai’i v. Trump is a dangerous opinion for this very reason—because it threatens the normalization of presidential conduct so extreme that it defies fundamental principles of equality and liberty, not to mention basic human dignity and decency.  The decision invokes the importance of judicial restraint, ostensibly to protect a future presidency.  But what precisely is this Court safeguarding—the power of other presidents to malign religious and racial minorities? 

This is no ordinary president.  And the grave irony of Hawai’i v. Trump is that the Court risks the very office of the Presidency that it claims to defend by enabling a president who repeatedly degrades it.  The majority easily could have distinguished this case by focusing on the outrageousness of the President’s statements and his repeated doubling-down on them in calling for the travel ban.  As the Court has taken pains to note in other contexts, an important purpose of separation of powers is to safeguard individual liberty.[1]  The Proclamation regulates the entry of foreign nationals into this country—and therefore affects their freedoms directly—but it also sounds in a broader echo chamber in ways that will touch the lives of Muslims domestically.  There is good reason therefore for the courts to be alert to the dangers of Executive power here, where the liberties of “discrete and insular” minorities”—both citizens and non-citizens alike—are concerned.  In these cases, we need more judicial power, not less.

Instead the Court peddles the ruse—brazenly announced as such by the president’s legal advisers (on television, no less) —that the Proclamation is the product of rigorous analysis of our national security apparatus.  One can reasonably wonder about the thoroughness of a “worldwide review” that can be reduced to a “mere 17 pages”[2] based on a report that the government has fought to shield from judicial review.[3] 

There is a raw shamelessness here—as when the Court implies that checking this president’s authority based on his expressions of religious bigotry would diminish the power of the bully pulpit.  Observing that the “President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf,” the opinion leaps from recounting the President’s “tweeted links to three anti-Muslim propaganda videos” to recalling presidents who have used their office to “espouse the principles of religious freedom and tolerance on which this Nation was founded.”  As if these two uses of presidential power are equivalent or even on the same plane.  As if challenging one would necessarily compromise the other.  In classic understatement, the Court acknowledges that some presidents have “performed unevenly” in living up to these aspirations.  Indeed.

We can hope that in the arc of constitutional history, Hawai’i v. Trump proves to be an outlier or widely condemned in the manner of Korematsu.  In the meantime, the decision sends a dangerous message about who is part of the American community and who is not.  The Court has shown that its barometer for bigotry is acutely sensitive to challenges to whiteness[4] and, as last week’s Masterpiece ruling indicates, also to anti-Christian bias.  But time and again it ducks its head in the sand when the freedoms of people of color are at stake.  The issue here is not only about who is allowed to enter the country.  There is a figurative border too.  The physical and social violence against black and brown people throughout history shows that one can be in America but not “belong” in America.[5]

In his Korematsu dissent, Justice Jackson described the lasting impact of opinions that rationalize institutional bigotry.  Quoting Judge Cardozo, he observed ‘“the tendency of a principle to expand itself to the limit of its logic.’” A government actor may “overstep the bounds of constitutionality, and it is an incident.” But if the Court “review[s] and approve[s], that passing incident becomes the doctrine of the Constitution.”  It becomes a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”  Such an opinion has its own “generative power” and “all that it creates will be in its own image.” 

Thus we are left to wonder how Hawai’i v. Trump will be deployed in the future.  (The next Supreme Court justice will play a crucially important role in this regard.)  Its timing could not be worse given the human crisis caused by this President’s “zero tolerance” policies against migrants.  Trump’s anti-Muslim bigotry may be matched only by his administration’s viciousness and inhumanity at our southern border.  In the meantime we should be clear what this decision is.  It is a dog whistle for this country’s basest instincts—the ones that have been fired up throughout history to unleash fear and hate against marginalized groups.  Let us pray that our country’s deeper sense of humanity and decency prevails.


[1] See, e.g., Boumediene v. Bush, 553 U.S. 723, 242 (2008).

[2] See Justice Sotomayor’s dissent, at slip op. 19

[3] Brief of Karen Korematsu et al. as Amici Curiae in Support of Respondents, at 35-36 n.1.

[4] See Elise C. Boddie, The Sins of Innocence in Standing Doctrine, 68 Vanderbilt Law Review 297 (20150

[5] See generally, Brief of NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae in Support of Respondents.

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