Abstract
The travel ban imposed by President Donald Trump raised constitutional challenges to the exclusion of immigrants and visitors from several Muslim countries such as Libya, Syria, and Somalia. The constitutional question is whether the ban is legitimately grounded in the President’s broad powers as Commander in Chief under Article II as well as specific powers over immigration granted by Congress, or is the ban instead grounded in animus against Muslims, in violation of the First Amendment? The Court’s decision to uphold the travel ban as a reasonable security restriction will increase the power of the presidency, but does not provide a blank check when First Amendment rights are implicated.
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Notes
- 1.
Trump v. Hawaii decision, page 38.
- 2.
By national security Constitution, I mean two things. First, the primacy the Founders placed on national security in the Constitution; that national security was the most important object the Constitution was to fulfill. Second, responsibility for the national security Constitution was placed in the hands of the President and Congress, not the judiciary. As two constitutional law scholars summarizing the war and foreign affairs powers the Constitution expressly grants to each branch of the federal government conclude: “What is most striking is the complete absence of the judiciary.” Ralph A. Rossum and G. Alan Tarr, American Constitutional Law: The Structure of Government, Vol. I, 10th ed. (Boulder, CO: Westview Press, 2017), page 204.
- 3.
Trump v. Hawaii decision, page 30, citing Fiallo v. Bell, 430 U.S. 787 at 792 (1977).
- 4.
Ibid., page 31, citing Ziglar v. Abbasi, 582 U.S. ___ (2017) (opinion at 19).
- 5.
Ibid., pages 31–32, citing Holder v. Humanitarian Law Project, 561 U.S. 1 at 34 (2010).
- 6.
Ibid., page 32.
- 7.
Ibid. In rational basis review, the Court simply asks if a law or order, like the Proclamation, is rationally related to a legitimate government objective (in this case national security); if the answer is Yes, the order is constitutional. The party challenging the order has the burden of proving that it has no rational basis.
- 8.
Trump v. Hawaii Justice Breyer dissent, page 8.
- 9.
Trump v. Hawaii Justice Sotomayor dissent, page 4.
- 10.
Ibid., page 23.
- 11.
Ibid., page 25.
- 12.
Trump v. Hawaii decision, page 32 note 5.
- 13.
Trump v. Hawaii Justice Sotomayor dissent, pages 15–16 note 6.
- 14.
The other three cases were Rasul v. Bush, 542 U.S. 466 (2004), Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and Boumediene v. Bush, 553 U.S. 723 (2008).
- 15.
Chicago & Southern Airlines, 333 U.S. at 111, cited in Hamdi v. Rumsfeld, 542 U.S. 507 at 582, Thomas dissent.
- 16.
Trump v. Hawaii Justice Kennedy concurrence, page 1.
- 17.
Trump v. Hawaii Justice Thomas concurrence, page 1 (emphasis in original).
- 18.
Ibid., page 10.
- 19.
Mark Sherman, “Roberts , Trump Spar in Extraordinary Scrap Over Judges,” Associated Press, 21 November 2018.
- 20.
Quoted in “No Holiday from Trump Bashing Court,” (Associated Press) Salt Lake Tribune, 23 November 2018.
- 21.
Trump v. Hawaii decision, page 38.
- 22.
Trump v. Hawaii decision, page 38, quoting Korematsu v. United States 323 U.S. 214 at 248, Justice Jackson dissent.
- 23.
Korematsu Justice Jackson dissent at 244.
- 24.
Ibid., Justice Murphy dissent at 242, Justice Jackson dissent at 245.
- 25.
Ibid., at 246.
- 26.
Trump v. Hawaii , page 38.
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Peacock, A.A. (2019). Trump v. Hawaii on the Travel Ban. In: Klein, D., Marietta, M. (eds) SCOTUS 2018. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-11255-4_7
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