President Trump’s Travel Ban Upheld—Barely

People protest the Muslim travel ban outside the U.S. Supreme Court in Washington, D.C., on June 26.
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President Trump’s Travel Ban Upheld—Barely

Why the Supreme Court’s 5-4 ruling should be concerning

The Supreme Court upheld United States President Donald Trump’s travel ban in a landmark ruling on June 26. Five Supreme Court justices voted to uphold the ban, while four voted against it. The Supreme Court decision in Trump v. Hawaii overturns a previous ruling from the Ninth Circuit Court of Appeals, which declared the ban illegal.

The travel ban affects people trying to travel into the United States from seven countries: Iran, North Korea, Syria, Libya, Yemen, Somalia and Venezuela. Five of the countries affected by the ban are majority-Muslim, one is majority-Catholic (Venezuela), and one is generally atheistic (North Korea). According to Executive Order 13780, issued by President Trump on March 6, 2017, each of these countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” The order specifies reasons why citizens from each of these countries are blocked from traveling to the U.S. until vetting procedures can be reviewed.

Chief Justice John Roberts declared that the ban aligns with the Immigration and Nationality Act (ina), which gives the president the power to enforce immigration law and to enact a temporary ban like this one. Part of the inastates:

Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

According to the law, President Trump is well within his rights to enact this ban. Many people speaking out against the ban, however, are saying the Supreme Court should have struck it down because they say the president is biased against Muslims.

Each of the five majority-Muslim countries is suffering serious unrest, violence and even terrorism. The president views the ban as a national security measure. Democrats and other liberals, and even many Republicans, say temporarily restricting travel from these nations is an affront to human decency.

“To opponents, the ruling validated an anti-Muslim agenda that betrayed American ideals, subverted the Constitution, and upended the hopes of thousands of families separated by war and deprivation,” the New York Times wrote on June 26.

As soon as President Trump proposed the latest version of the ban in March 2017, district courts in Hawaii and Maryland tried to block it. Hawaii District Court Judge Derrick Watson put a temporary injunction against the travel ban, which the Trump administration immediately appealed.

The injunction wouldn’t have been a problem if the issue was constitutionality. But for Judge Watson, the problem was not whether or not the ban was illegal, but what President Trump’s attitude was toward Muslims. Mollie Hemingway wrote in the Federalist in March 2017 (emphasis added throughout):

In issuing his temporary restraining order, Watson said Trump’s order was a result of nothing more than religious animus against Muslims. The judge’s order is predicated on what he thinks Trump wants to do, not the order itself.

Throughout the ruling, Judge Watson concedes there’s nothing about the executive order that would be problematic if not for his interpretation of Trump’s statements made in the months and years prior to issuing it. He repeatedly states his feeling that Trump had a bad motive in issuing the order.

The Ninth Circuit agreed with Watson. It based its decision on the idea that while the ina does give the president the power to regulate immigration, the president’s order “conflicts with the statutory framework of the ina.” The Ninth Circuit failed to specify exactly how the travel ban “conflicts” with the ina.

As the Federalist pointed out, that’s because it doesn’t.

Judge Watson, the Ninth Circuit and even four dissenting Supreme Court justices all used reasoning like this for their decisions. None of them used the law as the basis for their opinions that the ban was illegal.

Supreme Court Justice Sonia Sotamayor, who voted against the travel ban, said in her written opinion after the case that the ban is “contaminated” by President Trump’s anti-Muslim sentiments. But that is not the question under investigation. The duty of the Supreme Court is to decide whether or not an action is lawful according to the Constitution and the lesser laws of the land—not whether or not somebody can do something lawful if they have said things people don’t like.

The Federalist wrote that the fact the ban was passed 5-4, not 9-0, shows that “four justices—including the more thoughtful members of the court’s left—were willing to adopt a radical theory of intent-based law ….” This shows “how far activists in the judiciary will go to thwart the man they hate, even when he acts strictly within the rule of law.” This is a troubling example of partisanship in the highest court of the land. If the Supreme Court does not make its decisions based solely on the law, who will?

The Federalist continued:

If the law gives the president a power and that power does not violate the Constitution, then any president may exercise it. Going beyond even ordinary lefty rejection of textualism, the plaintiffs in Trump v. Hawaii say the Supreme Court must ignore the text entirely when the motives behind an action are impure. Hillary Clinton could have issued this order were she president because she is good; Trump is bad, so he cannot. And who would determine bad and good? The unelected courts, of course. …

What they are really doing, as Roberts writes, is expressing their disapproval of the order and their opinion of the man issuing it.

If Clinton had been elected president, cases like this probably would have gone the other direction. In his first year in office, President Trump appointed conservative Justice Neil Gorsuch to replace the late Supreme Court Justice Antonin Scalia. If Clinton had become president, she would assuredly have appointed a leftist justice to replace Scalia.

Many news outlets are pointing to this case to show that President Trump’s choice was partisan. But that’s not the real issue. If all of the Supreme Court justices had viewed this case purely from the perspective of whether or not the travel ban aligns with current law, and not their political motives or beliefs regarding the president’s personality, then the ruling would have had to be 9-0. But even in the Supreme Court, the question is no longer “What does the law say?” but “What do I want the law to say?”

Trumpet editor in chief Gerald Flurry wrote in his July 2008 article “The War Against Law”:

The Supreme Court justices are subject only to constitutional law—not the voters!

Their job is to interpret the law—or better, to let the law interpret itself. They have no authority to rewrite the law. If they rewrite the law, it’s almost impossible to correct the error. …

The founders of the Constitution put in place the walls, roofs and beams of our Constitution, as [Judge Robert] Bork said. The judges’ purpose is to preserve the architectural features—adding only filigree or ornamental work. Instead, the lawyers and judges are changing the very structure of our representative democracy.

The reason the U.S. Supreme Court exists and has any authority over anyone regarding anything is because of the U.S. Constitution. Leftist justices certainly wouldn’t want to interpret the existence of their court as “flexible” or “living” or “fluid.” But they and other liberals believe that when you can’t change the Constitution or other laws through amendments or other legal procedures, you can create your own laws by ruling on cases according to what you personally think is best.

Mr. Flurry wrote earlier in his article:

The Constitution is the foundation of our republic. And the Ten Commandments were, in many ways, the foundation of the Constitution. Our forefathers believed that if we didn’t keep God’s Ten Commandments, our republic would collapse!

Our forefathers had the awesome opportunity to establish the rule of God in the wealthiest country ever. So they established a Constitution to protect all of us from the extremes of human reason. Tyrants, unjust judges and biased leaders were controlled by this law.

Did our Founding Fathers know that the Bible interprets itself? To some extent, I believe they did. And they probably patterned the Constitution after the Bible, in that sense. The Constitution is a document that interprets itself probably better than any book or document, other than the Bible.

2 Peter 1:20 says that “no prophecy of the scripture is of any private interpretation.” The word “interpretation” can mean a loosening. “Private” means pertaining to one’s self. So no scripture can be “loosened,” or interpreted, based on a personal idea or preference. Neither can any part of the Constitution.

When law becomes relative and people wield their power based on their personal politics and beliefs, the strength of our law disappears, and the foundation of our nation crumbles.

For more, read “The War Against Law” and the booklet No Freedom Without Law, both by Gerald Flurry.