OP-ED: Justice Gorsuch, make the originalist’s case against Trump’s travel ban
More than a year after President Donald Trump issued his first of three travel bans on the pretext of ramping up national security, the Supreme Court is now pondering whether the government may bar immigrants from six Muslim-majority countries. The court’s decision will test the constitutional originalism of Trump’s first nominee to the high court, Justice Neil Gorsuch. Although Justice Gorsuch remained mostly silent during arguments April 25, the immigration ban is both a constitutional and statutory challenge to one of Trump’s key policy initiatives.
For an originalist like Justice Gorsuch, this shouldn’t be a tough call. Our nation’s founders believed that the firmly-established constitutional principle of religious liberty makes us a stronger nation. And the First Amendment makes clear the government is meant to remain neutral in this area.
Furthermore, during his confirmation hearing, Gorsuch adamantly claimed his independence from President Donald Trump, even getting testy with Senator Patrick J. Leahy (D-Vt.) when he mentioned that a Republican lawmaker suggested Gorsuch would be a sure vote in favor of Trump’s travel ban. Gorsuch snapped: “Senator, he has no idea how I’d rule in that case.”
As the Fourth Circuit previously ruled, the travel ban “second-guesses our nation’s dedication to religious freedom and tolerance.”
That dedication is rooted in the earliest days of our nation’s founding. Religious intolerance is what drove Europeans to flee their communities in the 17th century and make the dangerous ocean crossing to America. That experience, as well as the persistence of religious persecution in the colonies against Catholics and Quakers, persuaded the drafters of our Constitution to protect against religious intolerance clearly and conspicuously.
That’s why the very first line of the very first amendment to the Constitution imposes government neutrality in religion and guarantees the freedom to exercise the religion of one’s choice. As James Madison said, “(t)he Religion … of every man must be left to the conviction and conscience of every man.”
That is not the sentiment behind the Muslim travel ban. Judge James Wynn of the Fourth Circuit minced no words in describing it, “Laid bare,” he wrote, “this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims.”
The Ninth Circuit Court of Appeals pointed out that the administration offered no evidence that the republic is at risk from immigrants from the six mostly Muslim countries enumerated in the ban. Furthermore, the president’s own Department of Homeland Security reported that citizenship is an “unlikely indicator” of terrorism threats to the United States.
If that weren’t enough to strike the ban, there’s more: The sweeping nature of the ban exceeds the president’s statutory authority under the Immigration and Nationality Act of 1965. Although Congress gives the president wide discretion to deny any immigrant or visitor from entering the country, the law categorically bars discrimination based on “nationality, place of birth, or place of residence.”
Supporters of Trump’s travel ban insist that the law gives the president nearly limitless authority over immigration issues. But while Congress has given the president broad leeway, it has not given him unfettered power to issue a blanket exclusion against millions of people based on nationality.
In words that should speak clearly to Justice Gorsuch — who has made clear in his short time on the bench that he desires to stay true to statutory text and leave the legislative tinkering to Congress — the Fourth Circuit found “The President interprets the INA in a way that no other administration has in the statute’s sixty-five year existence and attempts to enact, by decree, the type of immigration policy traditionally reserved for Congress.”
In other words, the text and history of the Constitution forbid a religious test for immigration and the immigration laws prohibit discrimination on the basis of nationality. For an originalist and committed textualist such as Gorsuch, this should be a slam-dunk.
Of course, there will be enormous pressure on Justice Gorsuch from the president who put him on the Supreme Court. Trump has not been shy about criticizing the many federal court of appeals judges who have already ruled against his travel ban. This is a crucial moment that will set the tone for Justice Gorsuch’s tenure on the bench: Will he bow to President Trump’s pressure to rubber-stamp the travel ban, in which Trump made good on his campaign promise to ban Muslims from entering the country? Or will he fulfill his judicial duty to follow the laws as they are written and enforce the Constitution’s text, history, and values?
Trump’s Muslim travel ban ignores one of the most deeply-ingrained constitutional rights Americans enjoy as well as our fundamental government structure of divided powers between the three branches. Those violations mean thousands of Muslims are forbidden to get a fresh start on life, reunite with their families, find refuge from the horrors of war, or pursue economic advancement in the United States. Lower courts have fulfilled their core function of curbing the abuse of government power. The Supreme Court — including its newest Justice — must follow suit and rule forcefully against the ban.