Trump’s Travel Ban and Our Careless Court

by Dr. Caroline Poplin, Counsel & Medical Director, Guttman Buschner & Brooks PLLC

This Supreme Court apparently believes it should never question a presidential claim of national security, no matter how weak, no matter how broad, even if it involves refugees fleeing war and persecution.

Lest we forget, the United States was founded by the Pilgrims, a heretical Protestant group fleeing threats of imprisonment and execution in Jacobean England.

In Trump’s first executive order, popularly called the Muslim travel ban, the president suspended the United States Refugee Admissions Program (USRAP) for 120 days, halted admission of Syrian refugees indefinitely and reduced the total number of refugees to be admitted for 2017 to 50,000 from the 110,000 authorized by President Obama.

After confusion at airports and hostile receptions by federal courts, President Trump substituted a second executive order. His new order eliminated the clause specific to Syrians and the exception for religious minorities. In all other respects, it was unchanged.

Two months later, the Fourth Circuit upheld, 10-3, a Maryland District Court decision enjoining the travel ban on immigrants (the refugee ban had not been challenged) as a violation of the Establishment Clause. On June 12, a Ninth Circuit panel per curiam upheld the Hawaii District Court decision enjoining the entire travel ban, including the refugee section, as a violation of the Immigration and Nationality Act, without reaching the constitutional issue. Of note, both appeals courts mentioned Korematsu.

The United States applied to the Supreme Court post haste for relief. Now with its full complement of justices, on June 26, the Court, in a per curiam decision, casually reversed the decisions of both circuit courts along with underlying district court decisions with exceptions for immigrants or refugees who have a “bona fide relationship” with a U.S. person or entity. An entity apparently means a school or business. The fearful Court explicitly excludes U.S. resettlement agencies who contact foreigners seeking entry “to help them avoid the ban.” The Court allowed limited exceptions as a matter of “equity.” As most readers know, Justices Thomas, Alito and Gorsuch would have upheld the ban in its entirety.

Immigrants come for a better life, education or a job, or to rejoin their families. Delay may be inconvenient, even costly, but it is generally not life-threatening. This is not so for refugees. By definition, they are fleeing “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group social group, or political opinion,” according to the Immigration and Nationality Act (INA) Section 101(a)(42), tracking the  United Nations Convention Relating to the Status of Refugees (1951) to which the U.S. acceded.

Anyone who has seen recent film clips of Aleppo in Syria, Mosul or Baghdad in Iraq, Yemeni cities devastated by air attacks (perhaps by Saudis flying U.S. bombers) or executions of dissidents in Iran can understand the urgency of the refugees’ plight. You would think the Supreme Court might take judicial notice of such indisputable facts when balancing “equities,” but apparently not.

The Supreme Court was unmoved – in fact, oblivious.

Indeed, in response to a second opinion from the Hawaii District Court, the Court, in one paragraph, accepted the District Court’s expansion of the definition of close relatives, but doubled down on the refugee ban. Despite Judge Watson’s description of the current elaborate vetting procedure – which can take up to two years and involve formal contracts the State Department signs with U.S. resettlement agencies – only refugees with family connections already in the United States can enter. The Court felt no need to explain its action.

That reminds me and no doubt many others of the St. Louis.

In 1939, the St. Louis, an ocean liner with more than 700 frantic German and Austrian Jews aboard fleeing the Nazis, was turned away from the U.S. because the quota for German-Austrian “immigrants” for 1939 was filled. There was a waiting list of years. The U.S. State Department directed the “immigrants” to return to Europe and take their places on the list. Desperate cables to President Roosevelt were unavailing. – The ship returned to Europe (although not to Germany) and many of the refugees eventually perished in Hitler’s highly efficient death machine. Reportedly, Roosevelt declined because of the possibility of German spies among the passengers (i.e. “national security”) and a coming election during a time of anti-immigration sentiment.

The St. Louis incident and the State Department’s policy of turning away thousands more wartime refugees (including Anne Frank’s family) on spurious grounds remain a dark stain on America’s history.

The Circuit Courts carefully reviewed the government’s arguments: The Fourth Circuit opinion (excluding the dissents) was 79 pages; the Ninth Circuit’s was 81. The Ninth Circuit in particular analyzed the background of Section 1182(f) of the INA, which the president invoked, along with other provisions of the statute and the text of the president’s order. It also cited a number of cases – including United States v. Robel 389 U.S.258, 263-64 for the proposition that “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under Section 1182(f).”

Nevertheless, that is precisely what the Supreme Court does. It makes its decision in one sentence, citing one case (barring one man, a Marxist professor, under different provisions of the INA, who had been invited to speak): “The [lower] court instead should have upheld EO-2 because it rests on the “facially neutral and bona fide” justification of protecting national security Kleindienst v. Mandel 408 U.S. 753, 770 (1972).” The quoted phrase itself is strange: usually “facially neutral” is the beginning of the analysis and not the end; it refers to justifications that may be fair on the surface but create disparities in the real world, which could raise constitutional concerns. "

Then the Supreme Court “balances the equities” for American residents and institutions (except American resettlement agencies) only. Apparently, for this Court, including the so-called moderates, some of whom are only two generations removed from refugee status, the rest of the world’s population does not exist. The Court lives in a vacuum, where justice is determined by the narrow, dictionary meaning of words on a page.

This Court would have upheld Dred Scott.

The Court has gone off for a three-month vacation. The justices will refresh and relax while refugees struggle and die. What’s the rush?

This Court could not care less.

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