In a divided 5-4 decision, the U.S. Supreme Court has upheld President Donald Trump’s Muslim travel and immigration ban. Chief Justice John Roberts authored the majority opinion, reversing the multiple rulings in lower federal courts that the Muslim ban exceeded the executive branch’s authority under immigration law and was an unconstitutional policy based on discrimination against Muslims. While quoting President Trump’s statements and tweets both during his presidential campaign and as President clearly stating that he intended to ban all Muslims from the U.S., the Chief Justice disregards all these statements and tweets:
“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. ”
What the Chief Justice finds is, that as long as there are other rationales eventually proffered by executive departments such as the Department of Homeland Security, however weak or belated, the President’s own statements should not be considered as evidence of intent for an executive order.
In her dissent, Justice Sonia Sotomayor critiques this undue deference to executive authority:
“The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national security concerns.
But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.”
Justice Sotomayor also pointed out the hypocrisy of the majority that recently ruled in the Masterpiece Cakeshop v. Colorado Civil Rights Commission that “even slight suspicion” of religious animus toward a Christian (who refused service to a gay couple because of his anti-gay religious beliefs) was enough to be unconstitutional:
“…unlike in Masterpiece, where a state civil rights commission was found to have acted without ‘the neutrality that the Free Exercise Clause requires,’ the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance. Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country ‘that they are outsiders, not full members of the political community.’ ”
And then Justice Sotomayor concludes her dissent by drawing the stark parallels between today’s decision and the “gravely wrong” Korematsu v. U.S. decision that upheld the incarceration of 120,000 Japanese Americans based on dubious, and ultimately disproven, national security rationales:
“Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States (1944). In Korematsu, the Court gave ‘a pass [to] an odious, gravely injurious racial classification’ authorized by an executive order. As here, the Government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion. As here, the exclusion order was rooted in dangerous stereotypes about a particular group’s supposed inability to assimilate and desire to harm the United States. As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect. And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy….
In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. Today, the Court takes the important step of finally overruling Korematsu, denouncing it as ‘gravely wrong the day it was decided.’ This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another. Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”
Ignatius Bau 
It truly gets awfuler and awfuler. Thank goodness Sotomayor is on the bench.
Alice Hm Chen alicehmchen@gmail.com
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