Friday, July 6, 2018
The 5-4 decision sent a clear message to current and future presidents: So long as you use facially neutral language and invoke national security, we will not stop you from discriminating based on race, religion, or national origin in immigration enforcement.
This is music to the ears of a president who energizes his right-wing base through divisive anti-Muslim and anti-immigrant discourse.
Indeed, Justice Sotomayor's stinging dissent highlighted Trump's multiple anti-Muslim statements to show the executive order had little to do with national security.
On the contrary, Trump's travel ban on tens of millions of Muslims was precisely what he proclaimed when he issued it seven days after taking office, keeping a campaign promise to his right wing Islamophobic base. As early as December 2015, Trump reassured his supporters that if elected president he would support "a total and complete shutdown of Muslims entering the United States," because "there is great hatred towards Americans by large segments of the Muslim population." The statement remained on his campaign website until May 2017, four months after he issued the travel ban.
When pressed by a journalist in December 2015 on the legality of his proposal, Trump boldly pointed to President Roosevelt's internment of Japanese Americans during World War II as setting the precedent for his intended actions.
Throughout his campaign in 2016, Trump communicated his distrust of Muslims, association of Islam with terrorism, and intent on doing something about it should he be elected president. That his first executive order exempted Christian refugees further evinced he was targeting Muslims.
With such clear and convincing evidence of animus towards Islam, the Court could have easily applied the strict scrutiny test; thereby requiring the government to prove barring tens of millions of citizens from five Muslim majority countries (originally seven in the first version of the travel ban) was narrowly tailored to protect national security.
But instead, the Court upheld the ban because it "can be reasonably understood to result from a justification independent of unconstitutional ground". To put it simply, the Court was willfully blind to Trump's intent to unlawfully disfavour a religion.
This begs the question why America's highest court would approve such overt religious animus by a president who proudly wears it as a badge of patriotism. The answer lies in either cowardice or bias, neither of which bodes well for the Court's standing, while over half the public disapprove of a Muslim ban.
Afraid to take a stand in defense of the constitution at a time when the country is highly polarised, the Court hid behind the doctrine of plenary power - as it did in Korematsu, leading to the internment of hundreds of thousands of Japanese nationals and Japanese Americans.
It took decades for Americans to discover the purported national security justifications were a farce because the presiding Court declined to examine the facts.
Travel ban 3.0 still doesn't conceal Trump's anti-Muslim bias
In the case of the travel ban, the Court may have eschewed the facts due to some Justices' internalisation of pervasive stereotypes, namely that Islam is a violent ideology and that Muslims pose a threat to national security.