The Daily - The Supreme Court Upholds Trump’s Travel Ban

Episode Date: June 27, 2018

In a 5-to-4 vote, the Supreme Court upheld President Trump’s ban on travel into the United States by citizens of several predominantly Muslim countries. What does the decision say about the extent of the president’s power to control immigration? Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the Supreme Court upholds President Trump's travel ban on predominantly Muslim countries. What that tells us about the depth of the president's power over immigration. It's Wednesday, June 27th. Adam Liptak, what was the fundamental question that the Supreme Court was deciding on Tuesday? The Supreme Court was considering

whether President Trump had the lawful authority to do something he'd long wanted to do, spoke about on the campaign trail. Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on. Which was to impose restrictions on travel from a number of mostly Muslim countries. We have no choice. We have no choice. That question has two pieces to it. One is, did Congress give President Trump the authority to make these judgments in the realm of immigration and national security?

And the second one was whether he had illicit motives, and Trump the authority to make these judgments in the realm of immigration and national security. And the second one was whether he had illicit motives, whether he had animus against Muslims in imposing these executive orders. I think Islam hates us. There's something, there's something there that there's a tremendous hatred there. There's a tremendous hatred. We have to get to the bottom of it. Because if he did, there's an argument that the Constitution prohibits the action. And we can't allow people coming into this country who have this hatred of the United States. I guess the question is...

And of people that are not Muslim. I guess the question is, is there a war between the West and radical Islam, or is there a war between the West and Islam itself? Well, it's radical, but it's very hard to define. It's very hard to separate, because you don't know who's who. And that's what lower courts had determined, that his original intent to keep Muslims out of the United States,

as he articulated it, had kind of contaminated this travel ban. And they ruled against it over and over. That's right. President Trump's latest executive order is a scaled-back version of the original, which was struck down by a federal court. There were three versions of the travel ban. The administration issued another travel ban, its third in eight months. In this version, they dropped the country of Sudan. They added Chad, which has since again been dropped, but they added North Korea and Venezuela. And those are obviously not predominantly Muslim countries. Almost uniformly struck down by lower courts across the nation.

The judges cited the president's own rhetoric during the campaign, calling for a total ban on Muslims entering the U.S. And many of them on the ground that these statements betraying anti-Muslim animus violated the Constitution, and therefore whatever a president's authority in ordinary circumstances might have been, in this setting, they were enough to invalidate the three travel ban orders, including the latest one, a presidential proclamation issued in September. The Trump administration thought it had gotten past legal difficulties by revising the terms of its travel ban,

but now a federal judge in Hawaii has issued a new nationwide halt to that travel ban. So the lower courts basically found that the discriminatory intent outweighed presidential authority. That's right. So what happened inside the Supreme Court on Tuesday? By a five to four vote, with the more conservative justices in the majority, with Chief Justice John Roberts writing for the majority, the court said, in essence, that it was going to rule on the powers of the presidency, not a particular president. It said that it had to uphold what it said was a neutral proclamation, that if all you looked at was what was on the four corners of the document, the court had to uphold that and could not take account of the campaign statements and statements from later on.

And how did this actually unfold in the courtroom? his majority decision, in which he seemed to express some discomfort with President Trump's statements. But he said that Congress has given the president a lot of authority, and he has explained himself sufficiently in neutral terms about why he wants to do this. And these various statements he made at various times were not enough to undermine that authority. So what Roberts is arguing is that the president's authority is basically sacrosanct, that regardless of intent, the power of the presidency when it comes to making decisions

about national security is what it is. And his past statements and the latest travel ban don't undermine that. That's right. And it's also plainly true as a general matter, put aside President Trump's also plainly true as a general matter, put aside President Trump for a second,

but as a general matter, the courts do tend to defer to the president on national security judgments, do tend to defer to the president on immigration. Here we have the two things in combination. So if we didn't have this array of statements from President Trump, this would be an easy case. So what you're saying, Adam,

is that even Chief Justice Roberts, who's writing the majority opinion, seems to have some reservations about the actual travel ban, but is saying it's legal given the president's authority. Yeah, he seems to be holding his nose as he makes these judgments. There's a long passage in which he cites earlier presidents who, as he put it, quote, espoused the principles of religious freedom and tolerance on which this nation was founded. For instance, George Washington said that the United States gives to bigotry no sanction. Then he contrasted those statements with others and said, quote, it cannot be denied that the federal government and the presidents

who have carried its laws into effect have, from the nation's earliest days, performed unevenly in living up to those inspiring words. That was an indirect but unmistakable jab at President Trump. Hmm. I don't think the justices of the majority are happy about where they find themselves. I don't think they like what they're hearing. There was a very interesting concurring opinion from Justice Kennedy in which he says, essentially, we can't stop him from saying this stuff, but we wish he wouldn't. The president?

Yes. Okay, so after the majority reads its opinion, what happens in the room? Once Chief Justice Roberts concluded his summary of his its opinion, what happens in the room? Once Chief Justice Roberts concluded his summary of his majority opinion, two dissenters summarized their dissents from the bench. I should say that that mere act, a dissent from the bench, is very unusual. It happens a handful of times a term, and it indicates profound disagreement. The first of the two dissenters, Justice Stephen Breyer, was relatively mild. His basic problem was that he couldn't tell whether exemptions and waivers in the travel ban policy, opportunities for people to come into consular offices and say, I understand there's

a general categorical ban, but I'm not a threat. Let me make the case that you can let me in. And Justice Breyer said if that was a reality, maybe he'd be okay with it. But he had good reason to think that the categorical ban was a categorical ban. And that reasonably mild and technical dissent was followed by an extremely vigorous, very tough, very visceral, quite emotional, caustic dissent from Justice Sonia Sotomayor, essentially saying, you can't be serious. She said that, quote, in holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this court's precedent, repeats tragic

mistakes of the past, and denies countless individuals the fundamental right of religious liberty. And Adam, when Justice Sonnemeyer is referring to past mistakes by the Supreme Court, what does she mean? Ladies and gentlemen, the President of the United States. gentlemen, the President of the United States. She means centrally a case called Korematsu, which everyone agrees is a blemish on our nation's history. My fellow Americans, the sudden criminal attacks perpetrated by the Japanese in the Pacific provide the climax of a decade of international immorality. Living in that zone were more than 100,000 persons of Japanese ancestry, two-thirds of them American citizens, one-third aliens. We knew that some among them were potentially dangerous, most were loyal, but no one knew

what would happen among this concentrated population if Japanese forces should try to invade our shores. Military authorities therefore determined that all of them, citizens and aliens alike, would have to move. That was the 1944 decision in which the Supreme Court endorsed an FDR policy to put more than 110,000 people of Japanese ancestry on the West Coast into concentration camps. And on what basis did the Supreme Court back then uphold sending Japanese Americans to internment camps? It deferred to presidential power in wartime. So much like the court now defers to the president on national security and issues of immigration. That's right. And that's exactly the point Justice Sotomayor made. She said the two cases were of a kind and that, quote, 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 grave wrong decision with another. So Sotomayor is basically saying there's no real difference between the travel ban case and Korematsu. Yes, she's saying this is Korematsu redux, and if you say that to a lawyer, those are fighting words. And so how did the justices in the majority who are being implicated

in what Sotomayor is saying respond to that claim? Well, they certainly do one interesting thing, something long overdue. They overrule Korematsu. They say the dissents referenced to Korematsu affords this court the opportunity to make express what is already obvious. Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and to be clear, has no place in law under the Constitution. But they say their decision is very different from Korematsu. They say, quote, it is wholly inapt to liken

that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. So in rebutting Sotomayor's argument that this is like Korematsu, the conservative judges are trying to draw a distinction here, saying that decision, Korematsu, was discriminatory.

This one, the travel ban, is not. Right. And, I mean, you have to give them this. The implementation of the order that Korematsu endorsed was aimed by name at people of Japanese ancestry. The proclamation the court was considering may have been informed by illicit motives, but on its face did not refer to Muslims. Except for when the president did refer to Muslims in the original language he used on the campaign trail. And there's the point that divided the majority from the dissent.

And there's the point that divided the majority from the dissent. I think the Chief Justice would add also that Korematsu affected a lot of U.S. citizens living in the United States, while the that on the one hand, it feels like the message here is that the Supreme Court will willfully ignore intent that may be discriminatory, even when it's kind of blindingly obvious that that was the intent because the president articulated that intent. On the other hand, it feels like the court is saying, look, the president is entitled to any intent that he or she wants, even if it's discriminatory, so long as the final law or executive action doesn't reflect that intent. I think that might be going a tiny bit too far. ban were either phrased as Korematsu was by singling out people on the face of the order, or if when the order was issued, people separately said, the president or his lawyers,

we don't know really what we're after, really what our intent is, is to single out Muslims. I think those two things would not be very different. But so long as you have to connect the dots and have to draw inferences from separate statements not directly related to the executive order, the majority said it was going to give the president the benefit of the doubt. Adam, what's the practical impact of this ruling? The practical impact really is nothing because we already live in a world where the travel ban has gone into effect. The Supreme Court some months ago let it go into

effect while the case went forward, which was a sign that it was going to come out as it did. So it doesn't change the reality of immigration policy in the U.S. But this is a decision that comes at a time of great debate about immigration. It's politically salient and it's legally important. It is a big endorsement of presidential power in a part of the law where disputes are arising every day. That we're not going to stand for the criminalization of immigrants in this country. That we're not going to stand for the criminalization of immigrants in this country. So I will always be defending the sovereignty, the safety and the security of the American people.

The act of coming to this country to seek refuge is not a crime. But we're going to ask for an increase in wall spending so we can finish it quicker. It stops the drugs, it stops people that we don't want to have, and it gives us security and safety. Who are detention camps right now? On the border. On the border. Right. It seems hard to talk about this case

and this ruling without thinking about the moment we're in in the immigration debate. Given the divide within the court, given the endorsement of presidential power on matters of national security that this gives to President Trump in this moment, is part of what we've learned from this case that the justice system and even the Supreme Court has become more partisan than we'd like to think? We have to be tough and we have to be safe and we have to be secure. At a minimum, we have to make sure that we vet people coming into the country.

We know who's coming in. We know where they're coming from. One thing we know for sure is that in the lower courts, almost without exception, and in the Supreme Court, literally without exception, and in the Supreme Court literally without exception, if the only thing you know is the party of the president who appointed the judge or justice, you will know how he or she voted. So every Republican appointee on the Supreme Court on Tuesday voted to uphold the travel ban. Every Democratic appointee on the Supreme Court on Tuesday voted to strike it down. Is that evidence of politics in judging?

I think it is. The justices don't like to think about themselves that way, but that level of correlation is hard to explain in any other way. The ruling shows that all of the attacks from the media and the Democrat politicians are wrong, and they turned out to be very wrong. And what we're looking for as Republicans, I can tell you, is strong borders, no crime.

What the Democrats are looking at is open borders, which will bring tremendous crime. It'll bring MS-13 and lots of others that we don't want to have in our country. It'll bring tremendous crime. The White House itself on Tuesday afternoon released a statement saying that this ruling validates what it's been trying to do on the border for the past few weeks. Why would that be, do you think? I confess I don't follow the legal logic of that, but there's a kind of atmospheric reality there where people are not going to follow the details of this case very closely. People are not going to follow the details of this case very closely, but they're going to understand that a majority on the Supreme Court has just endorsed a policy that President Trump has been fighting for since the very earliest days of his administration,

and they're going to think it's of a piece with other immigration policies, including the separation of children at the border. Because it seems to suggest that the president has a tremendous amount of authority when it comes to deciding who to let into the country and who to keep out. Quite right. The court is just not willing to second guess even an idiosyncratic president who has said some quite wild things when the question is, does he have the power to protect the American border? And their answer is, he does. That's right. Adam, thank you very much. Thank you, Michael.

On Tuesday night, hours after the Supreme Court upheld the president's travel ban, a federal judge in California issued a nationwide injunction legally stopping the separation of parents and children at the border and ordered that all families already separated be reunited within 30 days. The order is likely to initiate a new legal battle with the Justice Department. We'll be right back. Here's what else you need to know today. Today's decision by the Supreme Court upholds the right of all Americans of both sides of these debates to be able to speak freely their beliefs and not have to violate their convictions.

In another 5-4 decision on Tuesday, the Supreme Court ruled that centers established to persuade women to continue their pregnancies do not have to tell clients about state-sponsored services like abortion, as a California law required. The court found that the California law violated the First Amendment by requiring the centers, which oppose abortion, to share information at odds with their beliefs. The court has consistently held that government hostility towards people of faith is unconstitutional and has no place in a diverse society.

At a news conference outside the court, a lawyer for the pregnancy centers, Kristen Wagoner, called it a victory for religious Americans. And the state of California demeaned religious organizations with pro-life views by ordering them to speak messages, to use the walls of their pro-life pregnancy clinics to promote and to turn women towards abortion. and to turn women towards abortion. And the first person to be criminally prosecuted by the Trump administration for leaking classified information pleaded guilty on Tuesday. A 26-year-old former intelligence specialist named Reality Winner agreed to serve five years in prison for giving a reporter a classified report

about Russian interference in the 2016 election. As part of its aggressive crackdown on leaks, the Trump administration has now brought charges against four individuals, including a staff member of the Senate Intelligence Committee. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.