But the fundamental lesson of the decision isn’t in the competing tweets; it’s below.
Over time, Congress has delegated tremendous discretion to the president, especially in foreign affairs.
The delegated discretion at question in the “travel ban” is in the Immigration and Nationality Act (INA), passed by Congress in 1952 and frequently amended since. As it appears in the U.S. Code, the relevant section of the INA reads:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. [Ed. emphasis]
As Chief Justice John G. Roberts Jr. wrote for the majority, “for more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ ” And in this particular case, one political “department” had given the other a lot of running room. Roberts put it this way: “By its terms, [this part of the INA] exudes deference to the President in every clause.”
Since only Justice Clarence Thomas claimed the president has “inherent authority to exclude aliens from the country,” the INA’s deference mattered. The justifications laid out in the president’s proclamation were sufficient to support the “finding” required by the law. While another part of the INA prohibits discrimination “in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence,” the court noted that visas can only be issued to individuals who meet the requirements for entry. If the president had already proclaimed a group ineligible, any individual within that group couldn’t be discriminated against — because they had already been barred from applying.
None of this made the decision a “profound vindication” of the substance of the order, as President Trump quickly claimed. Rather, it exhibited the court’s traditional position that “substantial deference … is and must be accorded to the Executive in the conduct of foreign affairs,” as Justice Anthony M. Kennedy wrote in his concurring opinion. Proclamation 9645 was simply one in a long line of orders under this statute — more than 40 in all, their targets ranging from Iran to Cuba to Sudan to Russia.
If things are that straightforward, why did four justices dissent?
In the spirit of soccer’s World Cup, the best metaphor may be the “own goal” — Trump nearly managed to put the ball into his own net, through his own rhetoric.
There are two dissents, actually, aligned but not identical. Justices Stephen G. Breyer and Elena Kagan, for their part, agreed that the text of the proclamation itself could be valid — but not if it originated in impermissible “religious animus” against Muslims. One way to determine that, they suggest, is in its implementation, studying how — if at all — the waivers and exemptions written into the proclamation are being applied. After all, they write “how could the Government successfully claim that the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation’s own terms?” They want the case to continue while lower courts examine the evidence. Without that, though, they say Trump’s own words suggesting “antireligious bias” must be taken seriously.
The other dissent is devoted to cataloguing those biased words in detail, going back to the Trump campaign pledge to impose “a total and complete shutdown of Muslims entering the United States.” Given that history, Justices Sonia Sotomayor and Ruth Bader Ginsburg call the administration’s “national security concerns” a “facade,” a “repackaging [that] does little to cleanse [the proclamation] of the appearance of discrimination that the President’s words have created.” No matter what the INA says, they argue, the proclamation “must be enjoined for a more fundamental reason: It runs afoul of the” First Amendment’s guarantee of religious neutrality. The dissent goes on to invoke the infamous Korematsu case that allowed the U.S. government to put U.S. citizens of Japanese descent in internment camps during World War II.
The court’s majority does concede that the judiciary is allowed to examine the president’s motives for issuing the proclamation. But it firmly rejects the comparison to Korematsu and argues that so long as there is a constitutional, “rational basis” for issuing the proclamation, the court should not second-guess the executive branch’s judgments in foreign policy, which — here Roberts cites a 1948 case — “’are delicate, complex, and involve large elements of prophecy.’” After all, the proclamation “is expressly premised on legitimate purposes” and had to undergo “a worldwide review process undertaken by multiple Cabinet officials.” It is worth remembering that — thanks to previous legal challenges — the text of the proclamation evolved quite dramatically from its even-more-widely-derided predecessors issued in January and March 2017.
The court, then, sided with the institution of the presidency. Put another way, the Sotomayor dissent might have convinced even the majority that Donald Trump is bigoted — but not that President Trump lacked the authority to issue this particular proclamation. Congress had given it to him.
Which brings us back to the growth of presidential power over time. One lesson of the “imperial presidency” is that executive authority is as often ceded as seized, by a Congress eager to delegate both for good reasons and bad. Complex policy requires administrative discretion, even an administrative state; but it also requires a Congress willing to stand up for its own prerogatives. The Trump administration, invoking “national security” to justify everything from tariffs on German cars to protections for bankrupt power plants, is only the latest to give fair warning that broad statutory discretion can be abused.
Even Kennedy seems to suspect bad faith: His brief concurrence ends with a rather plaintive plea that “that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs.”
But the remedy for a decision driven by the language of the law is not to plead. It is to change the law — or the elected officials who make and implement it.