Today, Explained - Yes we ban

Episode Date: June 26, 2018

In a 5-4 decision, the Supreme Court upheld President Trump’s travel ban. Emily Bazelon from The New York Times Magazine explains the opinion, a fiery dissent, and how the justices used this case to undo one of the Court’s most racist decisions. Learn more about your ad choices. Visit podcastchoices.com/adchoices

There's an electronic toothbrush out there called a Quip electric toothbrush. It starts at just $25, and if you go to getquip.com slash explained right now, you'll get your first refill pack free with your first Quip electric toothbrush. G-E-T-Q-U-I-P dot com slash explained. Emily Bazelon, writer for The New York Times Magazine. The biggest case of the Supreme Court's term was decided today, President Trump's travel ban in a 5-4 decision. The Supreme Court said the ban is constitutional, correct?

Yes, that is exactly what happened. It was a 5-4 ruling, and the conclusion is that the president was well within his authority. And the majority opinion by Chief Justice Roberts says that the plaintiff's challenge based on the idea that this ban was a Muslim ban, that, you know, it was a discrimination based on religion, that that doesn't work. That because the president was within his authority, whatever problems there were with the president's statements don't infect the ban enough for the Supreme Court to strike it down. And was that the only question they were trying to answer? Is this a Muslim ban or not? Or did they get into the idea of whether the president could just ban immigrants from these countries? Well, to back up a step, the first question is, did the president act within his

authority? And that's where the majority opinion is on the most solid ground. The president has a lot of authority under immigration law in general, but in particular, in terms of issuing visas. The people who challenged this ban were kind of starting out at a disadvantage. So the majority opinion says, OK, the president has lots of controversial statements about keeping Muslims out of the country. But then the court said, look, by the time this ban was issued, it had gone through a regular process, at least on its face within the government. And that was really good enough for the majority. Chief Justice Roberts, who wrote the majority opinion, says that the plaintiffs argue the 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 those statements. It's whether the significance of those statements in reviewing a directive that's neutral on its face address a matter within the core of executive responsibility. So you can kind of see there, I would argue, that Roberts is holding his nose. He knows these things that Trump said were, you know, out of order, disrespectful to Muslims, not really within our American constitutional tradition. But he is saying, well, that's the stuff the president said over there to the side. And once this order or proclamation went through what he's claiming is the government's regular process, it's as if it sort of cleansed the stain of what Trump actually said. Is there some extra significance to Roberts having delivered this particular decision? Well, I mean, I think yes, in the sense that he's the chief justice. And so for him to be

wielding his extra authority is significant. And also, Roberts has a way of writing that I think is quite successful in neutralizing very controversial points along the way. He sort of smooths things out. So, you know, instead of someone like Justice Alito or Justice Thomas or actually the newest justice, Neil Gorsuch, who can be quite incendiary in their rhetoric and make things sound more divisive, Roberts takes the edges off. It doesn't mean that the import of the decision isn't the same, but it kind of sounds nicer and smoother going down. So, what you have here is this idea, to do a little more quoting, where Robert says that this proclamation is facially

neutral toward religion. The plaintiffs are asking us to probe the sincerity of the stated justifications for the policy, but we're just not going to do that. And so, that's what we're seeing here is a kind of acknowledgement that what Trump said was, shall I use the useless word, inappropriate. I mean, that Roberts doesn't like it. The court would rather he didn't talk this way, but in the end, they don't really care. And what did the four dissenting justices argue? There are actually two different dissents. One is by Justice Stephen Breyer, and the second one is by Justice Sonia Sotomayor. So let's talk first about Breyer. Breyer is interested in how this order is actually being

applied. So he's looking at whether all these exceptions in terms of letting some folks in from the banned countries, is the government actually doing that? And his answer so far is like essentially almost not. Out of all the waivers applied for in the first month, only two were granted out of more than 6,500. And so I think essentially what Justice Breyer is saying here is if the government was serious about allowing the kind of case-by-case review that it would allow some people to come in from the banned countries, they would be doing a much better job of reviewing and granting these waivers. Okay, so Breyer's point is that the government said there would be these exceptions, but there are basically no exceptions. That's not fair. Right. So what's Sotomayor saying in her dissent? So she writes a more kind of traditionally full-throated dissent about religious liberty and the value that it's had in the country.

And she's really the person who kind of, you know, takes the stand that I think a lot of people took in the beginning with this travel ban where she's saying, this is not in step with our tradition of religious freedom in the United States and what happened here was wrong. And we shouldn't let the later versions of the travel ban or these kinds of claims of facial neutrality from the government blind us to the fact that there was religious prejudice that animated it from the beginning. And she also connects this case to one of the Supreme Court's most shameful decisions from the past century, right, Korematsu? Yeah. So, you know, Korematsu is one of the terrible legal stains on the American tradition where the Supreme Court upheld the government's authority to put the Japanese in internment camps. Fred Korematsu boldly opposed the forced internment of Japanese Americans during World War II.

After being convicted for failing to report for relocation, Mr. Korematsu took his case all the way to the Supreme Court. The high court ruled against him. And the Supreme Court has never overruled this decision until today. What happened was that the plaintiffs brought up Korematsu as another kind of very ill-advised overreach of government authority in the immigration and detention context. And Sotomayor brought it up to say, look, here are some parallels about how we are giving the same kind of ill-advised government policymaking a wide berth. She acknowledges that in the years since Korematsu, she says, quote, our nation has done much to leave its sordid legacy behind. But she's worried that what the court has allowed today is kind of going back into that tradition. She talks about the problem of blindly accepting the government's misguided invitation to sanction a discriminatory policy. So she's invoking Korematsu to really wave a red flag here.

Chief Justice Roberts, in his majority opinion, picks up her invitation, says this is not like Korematsu, and kind of makes it seem as if by even bringing that up, it's going too far. But then Roberts, I think smart smartly takes the opportunity of saying, well, while we're talking about it, we're going to say as a majority that that decision was gravely wrong and in effect overturn it. So it's this interesting rhetorical move on both sides, I would say. It sounds like Roberts and Sotomayor are interpreting the president's statements about Muslims the total opposite way. Roberts is holding his nose at everything the president said, and Sotomayor is saying that Trump's statements are the crux of this case. Yeah, exactly. And she sort of won't be fooled by the claims otherwise. And, you know, she can start out with some grand principles about how we're a country built on the promise of religious liberty.

And then she can say that the repackaging of the travel ban does little to cleanse it from the appearance of discrimination that the president's words have created. I think for a lot of people who have been following this, especially from the beginning when we had those horrible scenes at airports of people's lives being thrown into chaos, these words from Sotomayor are going to resonate. In a moment, there are seven countries included in the president's travel ban. Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela. What this decision means for them. This is Today Explained. Quip would like you to know that you might be doing it wrong, brushing your teeth, that is,

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Quip's guidance pulses remind you when to switch sides and they deliver new brush heads on a dentist-recommended schedule. Find out more at getquip.com slash explain. What does this mean for this travel ban? Is it on the books until a president or this president decides to take it off? Yes, it is. And the court addressed that because one of the arguments was, can you suspend this kind of issuing of visas indefinitely?

And the court said today, yes, the president can do that indefinitely. So did anything really change today as far as how our immigration policies work? Because this travel ban was already in place, right? Right. I mean, at this point, the answer essentially is no, because the court had already lifted the injunctions that were preventing the ban from going into place. You know, the evolution of this is that it started out in this moment of, like, terrible upheaval and protest at airports in a sense the united states just become utterly uncaring overnight another surge of

protests against president trump's controversial executive order my mom arrived at 7 24 and then mr. Trump was like, sign the paper. She's already in the air when he signed the paper, and we've been waiting for her. All we want is our mom. So we had all of that turmoil, and then we had these different iterations of this travel ban. We're now, I believe, on the third one. A federal judge has nullified the president's executive order restricting travel from seven mostly Muslim countries. This executive order, just as the first executive order, is a lawful and proper exercise of presidential authority.

Trump's second travel ban has met the same fate as his first one, blocked again by the courts. The administration issued another travel ban, its third in eight months. The travel ban, the tougher, the better. Each time, the idea was to make it seem more regular, more normalized. And by the time we got to this third version, the government had kind of gotten its act together in terms of presenting at least the appearance of neutrality. Right, and included North Korea and Venezuela. Exactly.

And so we had this list of countries that wasn't all just keeping out the Muslims. It sort of had some veneer of a more neutral way of thinking about the world and the way in which the United States could be threatened by various countries. We've been living with it for a while, and we're going to continue to live with it in its current form. Do you know what effect this travel ban is already having since it's been around for, I guess, this current iteration for at least many, many months?

I mean, I think you've probably heard the stories too. There are certainly people who are trying to get to the United States to study, to work, to get medical treatment. Those have been some of the heartbreaking stories who have not been able to get in, and they do not sound like they are individually threats to the country. And the idea that this case-by-case review that's going to lead to waivers seems to be not attainable for a lot of people. And I think it's hard to talk about this now outside the context of all the family separations at the border. And I think, you know, it's all kind of of a piece, this idea that the Trump administration is very interested in immigration as a wedge issue in the election and also in broadcasting an image that the United States is protecting its borders, it's closing its door against any perceived threat. And the notion of, you know, the Statute of Liberty seems quite out of fashion. Did the president just become more powerful? You mentioned up top that

Roberts was saying and the majority was saying, look, the president has this power, but did he just gain a bit of power? He had his power reaffirmed. I mean, one point Roberts makes, and it's a smart point for him to make, obviously, is that President Reagan banned a class of visa seekers from Cuba. President Carter did the same thing for Iranians at one point. We have seen presidents suspend entry for a group of foreign nationals from a particular country in other cases. Because of President Trump's statements that were so anti-Muslim, there was a question of whether he still had the same authority previous presidents had or whether he'd essentially jeopardized it or sacrificed it by expressing this kind of

religious prejudice. And so what we've discovered is he has the same authority every other president had and all the stuff he said and tweeted that seemed problematic, the court is not willing to hold against him, not in a way that really matters. I think that it is clear that a conservative majority is going to go out of its way to treat President Trump like any other president. They are going to hold their nose. They know that he says things that are unpresidential and make it difficult because he seems to be flouting our constitutional norms, but they are going to do the best they can to ignore all of that and just plow ahead with the usual kind of analysis about a president's authority. And that could have widespread implications. We don't really know how far they would go with that or how far President Trump will take it. He will certainly see

this decision today as a great triumph. Emily Bazelon hosts the Political Gab Fest podcast. I'm Sean Ramos for them. This is Today Explained. The show today was supported by Quip. Quip makes electric toothbrushes. You can get your first one starting at just $25 at getquip.com slash explained. And your first refill pack is free. After that, you need one every three months for just $5,

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