The question actually dividing them was how much deference Mr. Trump could claim by reason of his foreign-affairs and national-security powers under the Constitution and Section 212(f).
In some respects, the Supreme Court’s decision on Tuesday rejecting challenges to President Trump’s travel ban was highly predictable. Mr. Trump issued his series of executive orders under the authority of a breathtakingly broad statute — specifically, Section 212(f) of the Immigration and Nationality Act — a provision designed to forestall national security threats. And he issued it for two plausible reasons: the proliferation of international terrorism threats against the United States and the seeming inadequacy of overseas screening (“vetting”) of would-be travelers to the United States by some source countries. Given this context, the decision has all the surprise of a Golden State Warriors victory in the N.B.A. finals.
Why, then, did the decision draw four dissenters? Here too the answer is quite straightforward. Mr. Trump is a man who proudly parades his many egregious biases, especially against immigrants in general and Muslims in particular. His campaign was replete with vile stereotypes and schoolyard bullying of minorities of all sorts, conduct that has only worsened since the election. The dissenters took the president at his anti-Muslim word and found support in our long legal tradition, encoded in the First Amendment, protecting religious minorities from overreaching majorities.
The majority justices, no less committed to the amendment’s prohibition against government discrimination against particular religions, nevertheless emphasized the importance of distinguishing between the “statements of a particular President” and the “authority of the Presidency itself” — including Section 212(f).
[For another view, read an op-ed arguing that the legal rules the ruling is based on enable presidents and Congress to get away with blatant racism in immigration decisions.]
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