MUSINGS: A hostile environment

The three-ring circus currently playing in Washington to nominate an individual to replace the retiring Justice Kennedy appears to be less about the jurisprudential acuity or judicial temperament of the candidate and to be more about their politic and degree of opposition to liberal values such as those expressed in the Roe v Wade decision. This confirmed the female’s autonomy over her body by finding a right to individual privacy in the Constitution. It is tantamount to what the conservative jurist Robert Bork once termed the “political seduction of the law” at a time when the boot of Congressional power was firmly placed on the other foot.

The decisions of the US Supreme Court (hereafter the SCOTUS) are not merely exercises in legal reasoning, Essentially, they are, rather, expressions of political philosophy, wrapped in the legalese of constitutional interpretation. In such a context, a President in office seeks to nominate for approval candidates who are partial to his politics and thus likely to concretize his governance agenda for the foreseeable future. Thus a court is not assessed so much for its forensic skills but as to whether it is majority conservative or liberal. It is an issue that is fought over with as dogged a determination as the political elections themselves. Recall the legally baseless, though politically successful, insistence of the Republicans that the outgoing President Obama should not be permitted to nominate a justice to the SCOTUS.

History records though that sometimes the expectations of the nominator are dashed when the nominee turns out to be other than the conservative or liberal he or she was assumed to be. Justice David Souter disappointed the conservatives as did Justice Byron White the liberals, appointed by President Kennedy and yet a dissentient in Roe v Wade. It appears that one tends naturally to assert his independence when granted a guarantee of lifetime tenure.

This rather lengthy prologue might well serve to explain the recent decision of the SCOTUS, in which by a 5-4 majority, it upheld until full argument from both sides in October the legitimacy of what has come to be known as the Trump travel ban. While I do not claim any special expertise in US Constitutional law and I accept that there might have been a partisan political element to the decision, I am still able to assess the decision for the cogency of its legal reasoning and the respective allures of the competing arguments.

The travel ban involved a proclamation by the President of a restriction on the entry of foreigners from the predominantly Muslim states of Libya, Somalia, Syria and Yemen.

The arguments of the claimants/respondents in this matter, the state of Hawaii, three individuals and the Muslim Association of Hawaii, challenged the legality of the Proclamation, principally on the ground that it violated the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward the Islam religion.

In response, the Government argued that the matter was not justiciable or subject to judicial review because aliens have no “claim of right” to enter the United States, and, because exclusion of aliens is “a fundamental act of sovereignty” by the political branches, review of an exclusion decision “is not within the province of any court, unless expressly authorized by law.”

Chief Justice Roberts in his written majority judgment was prepared to assume without deciding that the ban was reviewable, notwithstanding consular non-reviewability or any other statutory non-reviewability issue and proceeded on that basis.

As to the substantive arguments that the Proclamation was not a valid exercise of the President’s power since the relevant provision of the law conferred only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct and that it was in further violation because it discriminated on the basis of nationality in the issuance of immigrant visas, he was of the opinion that the President possessed the power to restrict the entry of foreigners to the United States based on national security concerns. The Chief Justice held that the text of the relevant provision granted the President a broad discretion to suspend the entry of aliens into the United States and found that The President had lawfully exercised that discretion based on his findings – following a worldwide, multi-agency review – that entry of the covered aliens would be detrimental to the national interest.

He quoted the relevant provision –
“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.”

And he reasoned as follows, “By its terms, it exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that [it] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated.”

This reasoning comes pretty close to arguing that the discretion of the President in this regard is absolute, although it seems that he may not discriminate on grounds of religion. Indeed, this limitation was the basis of Justice Sotomayor’s dissent. She referred to the President’s anti-Muslim sentiments as expressed in various communications and dismissed the majority’s opinion that the ban was a matter of national security. According to her judgment,
“The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security con cerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of dis crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.

Cataloguing a number of circumstances where the President’s communications had exhibited animus towards Muslims, she concluded-
“…the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow question here is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country… The answer is unquestionably yes…”

Ironically, in the same judgment the majority overruled its earlier decision in which it had upheld the forcible relocation of US citizens to concentration camps, based solely and explicitly on race. However, CJ Roberts considered it “wholly inapt to liken that morally repugnant order to a facially neutral (sic) policy denying certain foreign nationals the privilege of admission…”

There exists in law the concept of indirect discrimination. According to the Australian Human rights Commission,indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute,…for example: It could be indirect disability discrimination if the only way to enter a public building is by a set of stairs because people with disabilities who use wheelchairs would be unable to enter the building.

Indirect discrimination is unlawful if the discrimination is based on certain attributes protected by law, such as a person’s race, sex, pregnancy, marital or relationship status, breastfeeding, age, disability, sexual orientation, gender identity or intersex status. Some limited exceptions and exemptions apply.

To my mind, while the proclamation did not fit neatly into this category, as it was not the same for everyone, it nevertheless constituted a kind of reverse indirect discrimination, if you will, whereby on the ostensible basis of national security, an exclusion had an unfair effect on people who shared a particular attribute-the Islamic faith.

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