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What The Supreme Court Said And Didn’t Say About The Travel Ban

The Supreme Court, in a 5-4 decision released on Tuesday, upheld President Trump’s Executive Order banning travel to the United States from several mostly Muslim countries.

The so-called travel bans had been early lightning rods for claims by virtue signaling Democrat and establishment Republican elected officials that the President was motivated by Islamophobia or animus against Travel ban upheldMuslims rather than legitimate national security concerns.

The majority of the Supreme Court rejected that claim concurring with Chief Justice John Roberts that, “The sole prerequisite set forth in [federal law] is that the president find that the entry of the covered aliens would be detrimental to the interests of the United States. The president has undoubtedly fulfilled that requirement here.”

The Court could have more or less stopped there in reaching its decision, but there were several other interesting holdings that are worth considering.

The first is that the Court found that, “Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching inquiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.”

In other words, the Chief Justice said that it was not appropriate for the Court to second guess the President on matters of national security, and even if the Court found it appropriate to review the validity of the findings upon which the President based his Order, the Democrats and other plaintiffs had not shown Trump’s decision was an inappropriate response to the threats documented in the Proclamation.

This was a very important victory, not only for President Trump, but for the constitutional concept that the President is the Commander-in-Chief and the Executive is the branch of government primarily responsible for national security.

Even more important was the Court’s holding that, “Plaintiffs’ argument that the President’s entry suspension violates §1152(a)(1)(A) ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. Had Congress intended in §1152(a)(1)(A) to con-strain the President’s power to determine who may enter the country, it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war.”

The holding strikes at the very heart of the Democrats’ argument that President Trump’s Executive Order was discriminatory and, without saying so directly, shows that the lower courts were intentionally misreading the statute.

The key point here is that the non-discrimination clause in our immigration laws only kicks in after admissibility has been determined. If the President makes a finding that nationality or group X is a threat, then it may be deemed inadmissible and the visa non-discrimination rules do not apply.

The boundaries of this remain somewhat unclear, since Roberts references “foreign states” in the decision, however, given the Court’s discussion that “The INA establishes numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B)(terrorist activities), (a)(3)(C) (foreign policy grounds). Add to that the statement that “Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, §1182(f), enables the President to ‘suspend the entry of all aliens or any class of aliens whenever he ‘finds’ that their entry ‘would be detrimental to the interests of the United States,’ coupled with the Court’s citation of “Common sense and historical practice” one could infer that affiliation with an anti-constitutional transnational political movement, such as Nazism and Communism, could also be applied to Islamism, and thus be cause for inadmissibility.

Finally, Chief Justice Roberts and the majority found that “Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause.”

This was the most important part of the ruling because had the Court bought the plaintiffs’ argument that President Trump’s Executive Order violated the Establishment Clause, then everything else would have been moot.

However, the Court found the Proclamation “is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previously designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters.”

This again is key, but somewhat ambiguous. At what point could adherence to an anti-constitutional religion, for example Wahabi Islam, be a “legitimate purpose” for inadmissibility?

The Court implies that after “a worldwide review process undertaken by multiple Cabinet officials and their agencies” the President could make such a finding and institute such a ban, but it doesn’t say so with the kind of specificity that would preclude future litigation if the President were to institute such a ban.

Rep. Keith Ellison, deputy chairman of the Democratic National Committee, one of two Muslims in Congress and a candidate to be Minnesota’s attorney general, attacked the decision as running contrary to American values. “Today’s decision undermines the core value of religious tolerance on which America was founded,” he said in his statement. “I am deeply disappointed that this ruling gives legitimacy to discrimination and Islamophobia,” but that is hardly the case.

The decision was founded on a clear reading of the plain language of the Constitution and the text of the Immigration and Nationality Act, a statute that Congress passed in 1952. The Court left the question of whether a “Muslim ban” is appropriate and constitutional for another day, finding, contrary to what Rep. Ellison would like Americans to believe, that President Trump’s Executive Order is “expressly premised on legitimate purposes and says nothing about religion.”

George Rasley is editor of Richard Viguerie's and is a veteran of over 300 political campaigns. A member of American MENSA, he served on the staff of Vice President Dan Quayle, as Director of Policy and Communication for Congressman Adam Putnam (FL-12) then Vice Chairman of the Oversight and Government Reform Committee's Subcommittee on National Security and Foreign Affairs, and as spokesman for Rep. Mac Thornberry now-Chairman of the House Armed Services Committee.

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What's in a number. The decision has come down. Period.

5 to 4 or 9 to 0, makes no nevermind. SCOTUS got this right. Trump was 100% OK in his ban, which is really not a ban but a security measure, which, by the way, was long, long overdue.. Trump is using his head when most of those around him, and absolutely those in the Deep State, are not using theirs. Trump got a key and telling W in this SC decision. Glad to see the SC has regrown some braincells. They have been OTL for years. Seems they are recovering from their demented state. Excellent. Now let's keep it up.