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LAW Prof: SCOTUS Travel Ban Decision Reflects a “Dark Era”

Karen Pita Loor analyzes Supreme Court’s split decision upholding Trump executive order

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The Supreme Court’s decision Tuesday upholding President Trump’s travel ban on several mainly Muslim nations reflects “a dark era in our country,” says a School of Law immigration expert.

Retiring Justice Anthony Kennedy, the court’s swing vote, sided with the majority, but wrote a concurring opinion—Chief Justice John Roberts wrote the main decision—with a message perhaps intended for Trump, says Karen Pita Loor, a clinical associate professor of law.

Kennedy, she says, “reminded executive officials of their oath to uphold the Constitution and urged them to abide by that oath.”

The court’s 5-4 decision OK’d travel restrictions on Iran, Libya, Syria, Yemen, and Somalia—all with Muslim population majorities—as well as Venezuela and North Korea. Legal challenges to the ban, including from the state of Hawaii and a Muslim group, did not object to restrictions on the latter two nations, alleging instead illegal religious discrimination against the Muslim countries.

This is the third version of the administration’s ban, and like its earlier iterations, it had been blocked by lower courts. Tuesday’s decision reversed those rulings and handed Trump a major political victory on an issue he’d campaigned for president on.

BU had opposed the ban, along with 30 other academic institutions, including all 8 Ivy League schools and fellow members of the Association of American Universities.

BU Today asked Loor to analyze the court’s decision.

BU Today: Do you agree with the court’s legal reasoning?

Loor: I disagree with the reasoning upholding the ban, particularly in light of the Establishment Clause challenge. According to the First Amendment, the United States government cannot establish a preferred or an undesirable religion. This third version of this executive order does just that.

It creates a group of noncitizens who are disfavored and not permitted to enter the United States because of who and how they worship. Prior religious discrimination cases have inquired whether a reasonable observer would believe that the state action was prompted by religious animus. As Justice Sotomayor points out when she recounts candidate and then president Trump’s litany of anti-Muslim statements, the record is undeniable.

What factor most governed the court’s thinking—its approach to religious liberty, or the president’s executive authority, or some other ideological position?

I think Justice Roberts’ majority opinion upholding the travel ban was dictated by his view that the judiciary takes a highly deferential role to the executive branch in the regulation of noncitizens—in this case foreign nationals seeking visas at American consular offices. The majority held that the language of Section 1182(f) of the Immigration and Nationality Act governing the entry of foreign nationals “exudes deference to the President” and thus the court may only review the executive order under rational basis, where the government action is justified as long as it is rationally related to a legitimate state interest. In this case, the majority found that refusing to provide visas to foreign nationals from certain Muslim majority countries that the administration claims provide insufficient information for proper vetting was rationally related to national security. 

In an unusual move, some of the justices read their dissents from the bench. What does that suggest?

Justice Sotomayor likely wanted to express the passion with which she disagreed with the majority in this case. Of course, all Supreme Court cases are important, but this may be one that we will be most referencing in history as a sign of this dark era in our country. My hope is that history will look at this [decision] with disapproval.

Challenges to the ban focused on the mainly Muslim nations rather than North Korea and Venezuela. Does that distinction make legal sense?

Yes. This distinction makes sense particularly as to the Establishment Clause challenge. It is important to remember that this was the administration’s third attempt at a travel ban.

The two prior versions of the executive order limited the entry of individuals from only Muslim majority nations. Plaintiffs knew that adding North Korea and Venezuela was merely a distraction from the discriminatory impetus for the visa restrictions.

17 Comments
Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

17 Comments on LAW Prof: SCOTUS Travel Ban Decision Reflects a “Dark Era”

  • Missy on 06.29.2018 at 5:22 am

    So application of the rational thought and logic required of all scientists to any matters of the law is now deemed evidence of us living in dark and dangerous times by those who oppose this decision? Perhaps since we see so many vociferous protests and passionate dissenting opinions about this highly emotional issue the SCOTUS should instead have based their decision on the logical fallacy of argumentum ad populum? Give me a break! This is precisely why we need to ensure the SCOTUS is not stacked with justices who ignore logic and rational thought and instead allow themselves to be driven by popular opinions. The POTUS is charged with the duty of keeping the American people safe and if he determines that some countries do not provide sufficient “data” for his advisors to adequately vet these people it is well within the his powers and duties to take actions to ensure people from these countries do not enter the USA. You may not like the way this decision makes you “feel” but the fact remains that decisions based on a careful review of the data, logic and rational thought always “Trump” (pun intended) those based on emotion and popular opinion.

    • Jaime on 06.29.2018 at 10:40 am

      The rational test refers to a standard of review. Understanding that, the rest of your comment markes no sense.

    • Charles on 06.30.2018 at 10:17 am

      We are not in criminal matters: Petty judges should not advertise themselves by opposing executive decisions, ignoring the separation of powers. They should not be able to appreciate the intentions of the executive decision, only the outcome of the decision for an individual American citizen. The intentions of the legally elected executives should never be appreciated by judges as tainted by racism or religious discrimination.

  • Jack on 06.29.2018 at 7:23 am

    The evidence of a dark era is that this ban is about racism and bigotry. Maybe you feel that Trump’s administration found a way to sneak racist policy within the law or, like Professor Loor, maybe you don’t. But this ban is not based on “data, logic, and rational thought.” Trump hasn’t made any decisions that way and he decided on this policy WAY before he had the facts. And keeping the public safe? Give me a break. Health insurance has way more to do with safety than banning American citizens grandmothers from visiting from the Middle East. I don’t see him taking action to protect that, he’s trying to take it away. Trump is pandering to his base.

  • Michael on 06.29.2018 at 7:32 am

    So now it’s a “dark era” when the Supreme Court upholds the rule of law in our country? These countries were initially chosen for a travel ban by the liberal God Obama by the way. I know it’s hard to get an unbiased non uber lefty story out of BU Today but give me a break. Try interviewing people on both sides of the issue instead of generating once again the same BS. How do you not understand that there is no way to vet many people coming from these countries and ISIS has already said that they would exploit immigration loopholes to get here. Take a look at Europe their welcoming stance to these countries has brought multiple attacks in the past several years.

    • Jack on 06.29.2018 at 9:38 am

      They don’t interview “both sides of the issue” because it just so happens that anytime they talk to someone informed about the issue they just so happen to disagree with Trump. How about that. It’s like he doesn’t know what he’s talking about.

      • Trish on 06.29.2018 at 12:43 pm

        He doesn’t know what he is talking about. He blatantly avoids the facts. No terrorist attacks have been perpetrated against Americans by anyone from the countries subject to this ban. Terrorists have come primarily from other Muslim countries, like Saudi Arabia and Pakistan. These countries did not make the list because Trump & Co have investment interests in those countries. This goes beyond left and right side of political aisle. The person sitting in the White House trying, but failing and flailing badly, is looking out for no one but himself and his big ego.

  • Kelly on 06.29.2018 at 7:38 am

    Isn’t this about thwarting terrorism on our home turf? If terrorists are of a specific religious affiliation than naturally any ban would have the characteristic of targeting those nations where the religion itself is dominant. This seems ugly but if you deny it makes sense you’ve lost all rationality. I realize that not all will agree, just like not all agree the drinking age should be 21 years old at a time when the age to join and fight for this country in the military is 18. The argument that most terrorist attacks here in the US were carried out by our own citizens turned against us by the preachings of Islam extremists is irrelevant, after all, this wasn’t the case with 911, the most severe and devastating attack.

    Also, I would like to point out that if you have an arrest record of any kind, something as simple as OUI, you are deneid entry to Canada at the border. Why should we be so lenient?

    • Dan on 06.29.2018 at 9:34 am

      If the ban is about terrorists coming from places, and 9/11 is the most severe and devastating terrorist event, why isn’t Saudi Arabia on the travel ban list since 15 out of the 20 terrorists who carried out the 9/11 attacks were from that country?
      I’m sure it has nothing to do with the fact that Trump and his clan have significant private business relations in Saudi Arabia. He would never put his own interests above the safety of America.

      • Jack on 06.29.2018 at 9:39 am

        Dan knows what’s up.

  • Konrad on 06.29.2018 at 8:33 am

    Karen is fully entitle to her opinion, but she has no monopoly on interpretation of law. Let’s leave it to more qualified lawyers on the Suprem Court.
    Also, I looking forward to the day when will BU Today will start presenting both side of the issues instead of practicing tendentious journalism.

    • Disillusioned BU staffer on 06.29.2018 at 9:42 am

      Don’t hold your breath Konrad. BU Today might as well rename itself BU-DNC Today. Also, why would a law professor with a different opinion want to put their name out there? You’re just opening yourself to verbal abuse from a mostly liberal, progressive student body and faculty/staff. Also, did you see the new hiring of the LAW dean? I’d love to know which Clarence Thomas rulings she actually agrees with. BU Today just wants to post articles that help drive the liberal agenda. As an example, why hasn’t BU Today posted yet an article about the 5-4 vote on the e-commerce tax? That’s a big decision with both “liberal” and “conservative” judges voting on different sides, which should lead to a fascinating academic related discussion with folks from both Questrom and LAW. Look at BU Today’s coverage on Ocasio-Cortez. Yes, celebrate the achievements of all alums, but don’t be the only “news outlet” in the country to not label her a socialist, a description she has embraced. BU Today just helps drive conservatives further underground, which most of the campus is fine with anyways.

      • Not Disillusioned BU staffer on 06.29.2018 at 11:54 am

        Takes a nut to know a nut.

      • michael on 07.02.2018 at 8:20 pm

        BU Today recently got a new editor I hope that he actually tries to create some type of objectivity when it come to their reporting. BU Today is basically a Karl Marx communist manifesto. They’re really doing a disservice to these kids by perpetuating the liberal brain washing instead of actually doing real journalism and impartially presenting a story.

  • David Capps on 06.29.2018 at 8:35 am

    The President has executive authority over immigration matters. Protecting All Americans is his goal. Left wing nut jobs are just trying to implement open borders and don’t care about who crosses the borders. We should pick from the brightest immigrants with the skills we need and make sure they have the ability to support themselves before letting them into the country. The travel ban is to prevent poorly vetted muslim extremist into the country. Thank god we have Scotus that actually look at the constitution for solutions rather than creating decisions based on public opinion polls.

    • Mike on 06.30.2018 at 12:03 am

      “We should pick from the brightest….” Are you kidding me?

      • michael on 07.02.2018 at 8:11 pm

        yes, he is not kidding. why don’t you look up Australia or Canada’s immigration policy picking the best and brightest to fuel their economy and create businesses is exactly what they do and what a prosperous immigration system looks like.

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