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The court and the president: Does the travel ban win suggest reconciliation?

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President Trump is portraying the Supreme Court’s order, which allows the so-called travel ban to be enforced during the lower court challenges to it, as a great legal victory. A bit hyperbolic, like much in the presidential vocabulary, but a win nonetheless. The court’s decision to vacate earlier injunction is a shift from its assessment of last June, amended this fall, that allowed the ban to be enforced only in part.

The court’s decision is favorable to the president, but as the ACLU and others challenging President Trump point out, it is not a decision on the merits; rather, it is an attempt by the justices to clear the worktable of earlier iterations of the so-called travel ban, which by operation of time had largely become moot.

President Trump in late September issued a new declaration that really was in substitution for his earlier efforts to limit entry to the United States of foreign nationals whose country’s vetting or screening procedures are deficient by objective measure. Those in opposition to the president doubt his allegiance to anything objective and would characterize even the revised presidential statement as based primarily upon animus toward those of Islamic belief and a general lessening of America’s long-standing welcome of refugees seeking escape from violent and brutal conditions.

{mosads}It is a matter of public record that candidate Donald Trump advocated excluding those of Muslim belief categorically. Candidate Trump was often intemperate and bombastic in his Islamic denunciations.


The history of the back-and-forth of the legal proceedings illustrates two things:

First, that the president has learned that executive orders should not be written in the manner of a stump speech. With each new iteration of the limitation on travel, the president has provided fuller explanation of his national security concerns. Indeed, the president contends that the review of vetting procedures he inaugurated has improved screening overall and that any nation that continues to be under restriction is one that is chosen to be so by its failure to meet standards that the larger world community observes when foreign nationals seek admittance to the United States.

The court’s decision lifting the injunction this past week reflects a second variable. It is a recognition on the part of the Supreme Court that even as a particular presidential occupant may be thought by many to be disagreeable in tone or personal characteristic, it is the duty of the Supreme Court to observe the structural allocation of powers and not to diminish the presidency merely because the present occupant of the office is contended to be morally deficient, disagreeable and less than honorable. The court must judge by the rule of law, not by the insinuations of unpopularity or even a pronounced presidential tendency to prevaricate.

This can be argued to be an unfortunate normalization or acceptance of lowered American standards. Perhaps. Yet, it can also be fairly characterized as the justices avoiding political judgment, which is not theirs to undertake.

What gets lost in the legal proceeding is appreciation for the impact of closing America’s doors to migrant populations to whom we have held out the promise of opportunity and safety as part of our commitment to human rights.

 As U.S. ambassador to the Republic of Malta during the violence and disruption of the “Arab spring,” I both directed and witnessed the sea rescue of thousands of migrant families who survived grave danger in pursuit of freedom. Malta was typically not the destination most desired by irregular migrants, but it was the one to which the winds of the Mediterranean consigned them. In many ways, those were winds of good fortune, because although Malta as an island republic lacks the same ease of movement into the balance of the European Union, it has a population historically and biblically known to be “of uncommon kindness.”

During my time in diplomatic service, it was a source of American pride to match that kindness with a humanitarian outreach to those who had survived the ordeal of migration. Without putting too fancy a face on it, we made reasonable effort to know each migrant by name, and if we were undertaking to place them, to ensure that their placement in the United States was not at the cost of U.S. security or opportunity. There is no record that this humanitarian outreach resulted in any increased threat or violence or loss of opportunity for earlier migratory populations that inhabit our blessed land. Quite the contrary, it often resulted in friendships that permit exactly what the president desires — a more careful vetting of the applicants for entry.

Pope Francis started his papacy by visiting the region in order to plead with the world community to recognize that the journey made by the migrant is the same one undertaken by our ancestors on our behalf.

As both president and candidate, Donald Trump has articulated strongly the duty he feels is his uniquely: to improve the security of his fellow citizens against the irrational hatreds of the Islamic State and the random actions of hate and killing that occur as vehicles plow into crowds or knives are wielded against the innocent in public spaces. These killings are horrific and barbaric acts. The Supreme Court has vindicated, for now, President Trump’s understanding of his security obligation.

In so doing, the court in its one-page order may be signaling that it will be giving to Donald Trump the historical deference given the discretion afforded past executive departments in matters of national security and migration. That discretion inevitably includes the weighing of limitations upon freedom of movement against the likelihood that malefactors will take advantage of that freedom to reward America’s kindness with death and destruction.

The ultimate outcome of the travel ban cases, if it is to be based upon law, cannot turn either upon a caricature of the president, even if that portrayal is based upon his own unorthodox, initial attempts at executive order writing, or, if we are to be true to the American story, global indifference to the plight of the irregular migrant.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.

Tags Donald Trump Immigration Supreme Court Travel ban

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