THE SUPREME COURT will journey into uncharted territory on Wednesday, when justices hear a legal challenge to President Trump’s travel ban. Opponents will seek to show that the president exceeded his authority and acted with religious animus when he blocked travelers from a group of predominantly Muslim countries last year, and that the policy should be struck down as a result.
Nothing quite like Trump v. Hawaii has come before the court before — because no president has so readily tweeted his bigoted motives.
There can’t be much serious dispute that Trump does, in fact, harbor anti-Muslim attitudes. His promise during the 2016 campaign to block Muslims from entering the United States was, explicitly, a promise to discriminate based on religion. And the ban clearly emerged from those promises. The government revised the plan twice — and added North Koreans in an apparent effort to find some non-Muslims to block too — but the chain of events and the president’s own tweets make clear that the policy was intended to make good on his bigoted campaign pledge. After-the-fact rationalizations of the type the administration has since concocted to defend the ban can’t undo the idea’s trajectory from tweet to policy.
The question is whether, from a legal standpoint, any of that should matter.
To hear the Justice Department tell it, the president has such broad powers over immigration that the plaintiffs have no legal right to “challenge the exercise of discretionary power vested by statute directly in the president.” And they try to finesse their way past the First Amendment by obfuscating the ban’s motives.
It’s a sweeping assertion of executive power that the justices should reject.
As a fundamental matter, the country’s basic legal guardrails — including the establishment clause that prohibits favoring any religion over others — don’t come with loopholes. The president’s actions clearly “denigrated persons of the Muslim faith,” as the plaintiffs put it. That fact alone taints the whole order.
But even without a finding of animus by the court, the president also lacks the power to ban whole nationalities. As the plaintiffs showed, Congress explicitly rejected discrimination by national origin in visa issuance. The president can temporarily ban classes of people, but he can’t simply rewrite that legal directive.
The case has attracted widespread attention, and not just because of its impact on Muslims. With this decision, the justices will orient how federal courts respond to the Trump presidency and to his public statements. If the Supreme Court chooses to ignore or minimize the president’s words and tweets, or treat them as somehow irrelevant, that will set an unfortunate see-no-evil precedent. But words have meaning. The better outcome would be for the justices to send a signal to the White House — and to the country —
that the court knows bigotry when it hears it, and knows that it has no place in American law.