Moral and Constitutional Dimensions of Trump v. Hawaii

By: Davis Brown

May 16, 2018

Responding to: Trump v. Hawaii: Constitutional, Moral, and Ethical Dimensions

Moral and Constitutional Dimensions of Trump v. Hawaii

Travel Ban 3.0 has been derided as a “Muslim ban.” This is an over-facile characterization—Venezuela is majority Christian (though the ban applies only to its leadership), Chad is only half Muslim, North Korea is mostly atheist, and several other countries have smaller albeit dwindling non-Muslim populations who are as much affected as Muslims. Many majority-Muslim countries are not affected, including Saudi Arabia where many of the 9/11 hijackers originated, and Iraq where terrorism has spiked.

Why, therefore, is the travel ban still cast this way? Probably three reasons: (1) President Trump advocated a “Muslim ban” during his campaign (which he has since walked back); (2) the seven countries in Travel Ban 1.0 were all majority-Muslim; and (3) much of the American media, intelligentsia, and popular left are so virulently biased against Donald Trump that they are wont to interpret his actions in the worst possible light.

But suppose, for argument’s sake, that concern against Islam were a factor. Why might that be? The simplest, most straightforward reason is that radical Islamist ideology poses a real, material threat. Although most Muslims are not terrorists, most foreign terrorist activity against the United States and its key allies is perpetrated by (radicalized) Muslims. Peter Furia and others have published survey results showing increasing popular belief in majority Muslim countries that the 9/11 attacks were justifiable. I have published research on the classical Islamic war ethic, showing that “Muslim” countries (defined multiple ways) are more likely than non-Muslim countries to initiate interstate armed conflicts (regardless of the target’s religion). I mean no disrespect to Muslims or Islam, but the hard evidence points to something going on inside the Islamic world. 

On the other hand, the ban has effectively punished tens of millions—mostly Muslim but not all—for the bad acts of a relative few that the majority neither supports nor condones. It has been genuinely and materially disruptive to many innocents who had intended to travel to the United States to attend school, reunite with families, or simply to attend academic conferences. There is something morally deficient about making them suffer consequences for something other than their own actions.

But such moral considerations will not—and should not—decide the case’s outcome. The legal questions come down to these:

1. Did the State of Hawaii, whose claim of injury is tenuous at best, have standing to sue at all? If not, the entire legal challenge is void ab initio.

2. Does the president have the statutory authority to issue the ban by proclamation? If not, the ban is void, but for technical reasons unrelated to its larger moral and constitutional ramifications.

3. Is the injunction against enforcing the ban, issued by a single district court judge but applying to the entire country, impermissibly overbroad? This question has serious constitutional implications, for allowing any one of 677 district court judges to constrain the Presidency significantly upsets the balance of power between the judicial and executive branches.

Any of these three questions could decide the case without the Supreme Court even reaching the most critical question, which is:

4. Does the proclamation violate the Establishment Clause, by unlawfully discriminating against Muslims? The actual text of the proclamation suggests not; the eight countries are identified as deficient in cooperating with the United States in verifying identities of visa applicants and identifying potential terrorists, or for being safe havens for terrorists (Section 1(c)). Other than briefly mentioning threats from ISIS and Al-Qaeda in the Islamic Maghreb, among others, the words “Muslim” and “Islam” appear nowhere in the proclamation.

But might the historical background and the proclamation’s legislative history reflect an intent toward de facto discrimination anyway? Trump’s campaign-era call for a Muslim ban and the identity of the seven originally affected countries might do this, but such claims could be undermined by the travel ban affecting only 8.8 percent of the world’s Muslims.

Another thorny question arises: Does the Establishment Clause protect nonresident aliens, who have no “right” to enter the United States? If not, then the standard of strict scrutiny for Establishment Clause cases, which almost no governmental action ever passes, yields to the more deferential rational basis standard: the action must be “rationally related” to a “legitimate governmental objective.” The travel ban is not perfect, but by the standard of constitutional law, it likely is “rational.” The Supreme Court likely would not uphold a “Muslim ban” as legitimate, but the stated reasons for the travel ban in the proclamation could be.

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