Orrick's Bob Loeb Authors Commentary on SCOTUS Travel Ban Ruling

The National Law Journal

In an infamous case, the U.S. Supreme Court started its majority opinion by noting that the executive authorities “charged with the primary responsibility” for national security said that the challenged order of exclusion was warranted. The dissent explained that the policy was truly based on “prejudice.” But, the high court upheld the discriminatory policy, which was motivated by animosity toward a disfavored group, based on a superficial claim of national security (as the “urgency of the situation demanded”).

That case was Korematsu v. United States, decided in 1944. There, the court upheld the policy of relocation and detention of U.S. citizens of Japanese ancestry. The infamous case had not been formally overruled—until Tuesday. The court this week, in response to the dissent’s comparing the President Donald Trump travel ban to the 1944 ruling, said:

The dissent’s reference to Korematsu … affords this court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.”

The irony is that the sheepish deferential approach to a president invoking national security, which led to the court allowing racially intolerant policies in Korematsu, is displayed to an even greater degree in the travel ban case, Trump v. Hawaii. As Justice Sonia Sotomayor said in dissent: “By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

In Korematsu, World War II was going on and the passivity of the court can be understood in that context. Here, however, the so-called national security crisis was the pure invention of a candidate taking an outlandish position to get press attention. The proposal was attacked as absurd from the right and the left. And, with the ruling in the travel ban case, the court now obsequiously bows to the policy, even though recognizing the policy was undeniably rooted in discriminatory intent. Indeed, the court’s opinion in the travel ban case, authored by Chief Justice John Roberts Jr. does not sugarcoat the evidence of animus by Trump. The opinion cites Trump’s promise to ban the entry of all Muslims (“a total and complete shutdown of Muslims entering the United States”), his later tweets reaffirming the same, his posting of anti-Muslim videos, and so on.

Roberts tries, as the high court did in Korematsu, to hide behind a wall of deference. He said the issue is “not whether to denounce the president’s statements,” but the “significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” The dissent, however, lays out a compelling chronology, showing the reaffirmation of Trump’s originally announced plan to ban all Muslims. After winning the election, Trump was “asked whether he would ‘rethink’ his previous ‘plans to create a Muslim registry or ban Muslim immigration.’” He replied: “You know my plans. All along, I’ve proven to be right.” Trump then upon taking office called up his advisers, told them he wanted his Muslim ban, and asked them to “show me the right way to do it legally.” So, the travel ban was adopted with a more neutral title and elements. But, as the dissent explains, government lawyers simply cannot wish away or “launder” the proclamation of its discriminatory taint. Former U.S. State Department Legal Adviser John Bellinger said after the ruling, the policy is a “pig” and “the administration has put just enough lipstick on it for it to look pretty for five of the nine justices.”

The saddest of the opinions was the concurrence of Justice Anthony Kennedy, who on Wednesday announced his retirement from the court effective this July and provided the crucial fifth vote. His opinion raises a white flag, sending a clear message that the court cannot redress all constitutional wrongs by the president: “There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention.” He continues: “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct …”

So if you are keeping score, that is Trump: 1, Rule of Law: 0. Hope by the court that a rogue president will honor his oath of office simply does not measure up the type of checks and balances mandated by our Constitution. As the dissent states: “Our Constitution demands, and our country deserves, a judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.”

Bob Loeb, a partner in Orrick, Herrington & Sutcliffe’s Supreme Court and appellate group, previously spent more than 20 years as an appellate lawyer with the U.S. Department of Justice, including defending controversial national security and immigration policies. He was amicus counsel in the travel ban case for former DOJ, INS and DHS officials.

Reprinted with permission from the June 27, 2018 edition of The National Law Journal © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].