Posted on 03/16/17
| News Source: The Hill
Here we go again. Two federal judges have struck down the key provisions of President Trump’s revised travel ban. There will be more to come, as constitutional challenges are brought to courts around the nation.
This time there will be no revised new executive order. The president will stick with this one and have his Justice Department appeal it, first to the circuit courts and then the Supreme Court.
President Trump cited my statements on television in support of his prediction that the Supreme Court would rule in his favor:
“Even liberal Democratic lawyer Alan Dershowitz — good lawyer – just said that we would win this case before the Supreme Court of the United States.”
I did say that, even though I do not support the ban as a matter of policy. There is a difference, of course, between a law being bad policy and being unconstitutional. Oliver Wendell Holmes once described the role of the lawyer as making “prophecies of what the courts will do in fact.” But as Yogi Berra once quipped “it’s tough to make predictions, especially about the future.” It’s even harder if the prediction is about what eight, or possibly nine, justices will rule in a given case.
Having said that I will venture a prognostication: I think the justices will uphold the major provisions of the order, if the case gets to them. It may not, because the order is a temporary ban that may expire before it reaches the High Court, thereby making the case moot.
It is also uncertain, if the case does get there, whether it will be decided by eight or nine justices. This will depend on the comparative speed of the case and the confirmation process for Justice designate Neil Gorsuch. Senate Democrats may try to stall his nomination until after the travel case reaches the justices, on the assumption that he would vote to uphold the ban.
If the case reaches the Supreme Court, a major issue will be whether campaign rhetoric delivered by Donald Trump, when he was a private citizen running for president, may be considered by the courts in deciding on the constitutionality of an executive order. The lower courts gave considerable, indeed dispositive, weight to these anti-Muslim statements in deciding that the travel ban was, in reality, a Muslim ban that would violate the constitutional prohibition against discrimination on the basis of religion.
Under that reasoning, had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said. In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed.
Most political leaders have mixed motives underlying their actions: they want to protect the security of the nation; they want to appeal to their political base; they want to keep campaign promises; they want to win.
Trump campaigned on the pledge that he would specifically address the issue of “Islamic Terrorism” — a term President Obama refused to use. Trump believes that radical Islam is the major source of the terrorist threat faced by the U.S. It would follow from this view, that the countries that pose the greatest danger of allowing terrorists to reach our shores are countries that sponsor terrorism and do not vet their citizens for terrorist ties.
Most prominent among these nations is Iran, which is the largest promoter of terrorism and which has targeted and continues to target the United States. It is entirely natural to include “The Islamic Republic of Iran” on any list that is designed to deal with terrorism. The same is true, to varying degrees, of the five other predominantly Muslim countries on the Trump list: Syria, Yemen, Sudan, Somalia and Libya.
The fact that all these countries are predominantly Muslim — indeed, most have established Islam as their official state religion — does not suggest religious discrimination. Those are the very countries that pose the greatest danger of terrorism, in the view of the Trump administration. They are not the only such countries, but if others were added to the list, they too would be predominantly Muslim countries.
But what about France or Belgium or England? They too have experienced Islamic inspired terrorism. But these countries have far better vetting procedures. It is not a coincidence that when the Obama administration devised a list, for a different but related purpose, of countries that posed a risk of unvetted terrorists, it was the identical list initially employed in the original Trump travel ban.
When Willie Sutton was once asked “why do you pick banks to rob,” he replied “because that’s where the money is.” Not all the money, but enough of it to prioritize banks. Similarly, when asked why these six countries were prioritized, the Trump administration responds, “because that’s where the terrorists are,” — not all of them but these countries aren’t vetting them properly.
The inclusion of the six Islamic countries in the travel ban is rational. It may not be the best list. Perhaps there should be no country list at all. But that is a judgement allocated by Congress and the Constitution to the executive branch. It is subject, of course, to the constraints of the Constitution. But the judicial branch will generally defer to the executive branch on matters involving national security, unless there is a clear violation of the Constitution.
In my opinion, that high threshold has not been reached in this case. So I predict the Supreme Court, if it gets the case, will find the new executive order constitutional.