Using 39 pages to uphold President Donald Trump’s controversial 2017 travel ban, Chief Justice John Roberts on Tuesday handed the president a significant victory with the Supreme Court’s ruling, but did the majority ruling pour water or kerosene on the “resistance.”
As quoted by Fox News, attorney Neal Katyal, who fought the travel policy, was hardly conciliatory.
“The president would be mistaken to interpret today’s decision as a greenlight to continue his unwise and un-American policies,” Katyal reportedly stated. “As the Supreme Court has repeatedly said, not everything that is constitutional is good policy. The travel ban is atrocious policy, and makes us less safe and undermines our American ideals.”
According to Fox News, the attorney added this: “Now that the Court has upheld it, it is up to Congress to do its job and reverse President Trump’s unilateral and unwise travel ban.”
But that may be a little short-sighted. The Roberts ruling was not just a victory for Trump, it was a win for the office of the president, no matter who sits in it. That’s because the ruling affirmed presidential authority, not just Trump’s ability to exercise it. Here’s what the ruling said that is important:
“By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.”— Chief Justice John Roberts’ opinion, Trump v. Hawaii, page 10
Fourteen pages later, Roberts reiterated:
“The Proclamation is squarely within the scope of Presidential authority under the INA. Indeed, neither dissent even attempts any serious argument to the contrary, despite the fact that plaintiffs’ primary contention below and in their briefing before this Court was that the Proclamation violated the statute.”—Trump v. Hawaii, page 24
The majority opinion had concurrences authored by Associate Justices Anthony Kennedy and Clarence Thomas. The court’s four liberals – Stephen Breyer, Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg – offered two dissenting opinions.
By no small coincidence, Tuesday’s 5-4 decision mirrored the high court’s split ten years ago to the day that the Supremes affirmed that the Second Amendment protects an individual right to keep and bear arms for personal protection that goes beyond militia service. Gun rights is another volatile issue that has divided the country, but the travel ban became a lightning rod issue for the Trump Resistance.
Anti-Trumpers, who have spent the past 18 months in denial about the 2016 election, were and are using travel and immigration as issues to fire up the liberal base. The Supreme Court’s travel ban ruling might be a “vindication” for the president, while at the same time stoking the fanaticism that has been recently seen in efforts to harass members of the Trump administration, and Florida Attorney General Pam Bondi, a Trump supporter.
While Tuesday’s ruling also threw cold water on the Democrat attorneys general from several states who had challenged Trump’s travel bans, that may be only temporary. For example, Washington Attorney General Bob Ferguson has, according to the Seattle Times, filed more than 20 lawsuits against the administration. That might suggest to Ferguson’s critics that this is more recreational and political than it is about the rule of law.
Congressional mid-terms are coming up in less than five months, and Democrats running for a spot on Capitol Hill will be running against the president and his agenda, demonizing Republicans in the process.
Democrats want Trump gone, and short of that, they want to use the mid-terms to neuter his presidency. Tuesday’s high court ruling may intensify their efforts by adding the argument that their party needs to re-take the Senate and thus prevent the president from strengthening the court’s conservative wing, which could be Trump’s greatest legacy.