TRAVEL BAN: WORDS THAT BIND ARE WORDS THAT LAST
Jack Urquhart© June 26, 2018
Today, the United States Supreme Court denied injunctive relief to those opposing the third edition of the President’s travel ban, restricting admission and visa rights to nationals of eight countries. The majority opinion in Trump v. Hawaii, No. 17-965 (June 26, 2018) was supported by the unquestioned power Congress has delegated to a President to restrict entry into this country. Practically, entry can be restricted whenever the President deems such entry “would be detrimental to the interests of the United States.” Why did the travel ban case ever reach our highest Court? WORDS.
When running for the Presidency, and as President, the current Executive vilified a single religion. His travel ban, therefore, plausibly violated the Constitution’s First Amendment Establishment Clause. Arguably, the travel ban reflected religious animus, rather than legitimate concern about national security. Now, the Court has spoken. Winners and losers can be identified. The Court can be praised or demonized. The dissenters can be shamed or glorified. I choose to single out the concurring opinion of Justice Kennedy as worth reading and remembering.
In all events, it is appropriate to make this further observation. There are numerous instances in which the statements of Government officials are not subject to judicial scrutiny or intervention. 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 or even comment upon what those officials may say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and promise.
The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From those safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.
He gave his vote to the majority. Without his vote, the travel ban would be dead and gone. Yet, Justice Kennedy WORDS resonate. They are hopeful and humane. They give us reason to persevere in the face of battles lost along the way.