As SCOTUS prepares to hear the case of President Trump’s executive order temporarily banning travel from six Muslim-majority nations, I must express amazement that no one on either side of this issue seems to have noticed the obvious: The very reason the courts have giving for striking down Trump’s order is the reason why they should have approved it.
Unfortunately, I must first make a disclaimer (unfortunately because there is so much “Yer either with us or agin’ us” thinking these days): I personally do not support a travel ban, and have said so on at least three occasions on this blog, starting in 2015. For instance, I wrote on December 9 of that year,
I recently wrote here in defense of the U.S. accepting Syrian refugees, in agreement with President Obama’s contention that America’s tradition of helping desperate innocents should not be so quickly or easily be curtailed. My stance of course is the same concerning “El Donald’s” call for a moratorium in entry of Muslims to the U.S.; Trump is wrong, on a number of levels.
But the courts that have struck down Trump’s travel ban are equally wrong. Their main point, particularly in the case of the Fourth Circuit Court of Appeals, has concerned intent. The justices contend that Trump’s action was driven by an animus toward Muslims. The appellate court’s opinion mentions the word animus 22 times, and most of the 240-page document is devoted to citations of case law that the court contends give it the right to void a presidential action that is motivated by animus toward an ethnic/religious group.
The court cited various statements made by Trump during the election campaign regarding his view that a temporary travel ban is warranted. But, at least taken at face value, every single one of those statements concerns protection of the security of Americans. All of his comments have been negative, of course, but always in the context of U.S. security, a legitimate motivation.
Of course, one can question whether Trump’s facts are right or not. For instance, he has cited various surveys that claim to show that a disturbing proportion of Muslims support violence and so on. I don’t know enough to pass judgment on the accuracy of those surveys.
It is conceivable that Trump may have some lifelong unhealthy attitude toward Muslims. But the court showed NO evidence of such a thing. Lacking such evidence, it seems to me that the justices were wrong to strike down Trump’s executive order on the basis of intent. The fact that the Fourth Circuit decision split precisely along party lines is troubling.