What Trump v Hawaii means after the Muslim travel ban

Linda Greenhouse offers an op-ed in the New York Times about the meaning of Trump v Hawaii now that President Biden has rescinded the Muslim travel ban that gave rise to it. After all, the legal precedent remains even though the policy is now gone. The whole piece is worth reading – especially the immigration law professors teaching the foundation cases in plenary power, as I am this week – but two passages especially caught my attention.

First, Greenhouse offers a retrospective with more knowledge of President Trump’s antipathies and the Supreme Court’s sensitivity to religious liberty, likely enhanced with the addition of Justices Cavanaugh and Coney Barrett. From Sonia Sotomayor’s dissent

The majority’s “highly abridged account does not tell even half of the story,” Justice Sotomayor began. What was left out was an inventory, which she provided, of oral and written statements by Donald Trump, as both candidate and president, attesting to his desire to keep Muslims out of the country — directly if possible, or by “politically correct” means if required by the courts. “The full record paints a far more harrowing picture,” Justice Sotomayor went on, “from which a reasonable observer would readily conclude that the proclamation was motivated by hostility and animus toward the Muslim faith.” She added, “Given the overwhelming record evidence of anti-Muslim animus, it simply cannot be said that the proclamation has a legitimate basis.” To the contrary, she concluded, “It runs afoul of the Establishment Clause’s guarantee of religious neutrality.”

The second is a reminder of the federal government’s responsibility to exercise its vast executive powers and enforcement discretion in responsibly – in immigration law and elsewhere. Quoting a passage from Justice Kennedy (his last on the Supreme Court before retiring):

There are numerous instances in which the statement and actions 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 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 its promise.

MHC