Travel Ban Upheld

Judge McKay: Let's try and keep this from become a personal matter, please.
Ed Hucheson: Well, a newpaper's a very personal matter, sir. Ask the people who let us into their homes. 
Judge McKay: I've read The Day for more than 35 years. Before that, I sold it in the streets. However, here we're only concerned with the legal aspect of the sale and purchase of property.
--Deadline U.S.A.

In a 5-4 decision released yesterday, the Supreme Court upheld President Trump's 'travel ban' affecting several mostly Muslim countries. The ruling essentially reverses several lower court rulings opining that the ban unjustly discriminated on the basis of nationality and religion.

Those lower court opinions, and those among the four dissenting Supremes, are grounded in the argument that statements made by Trump, many of them during his presidential campaign, 'prove' that his motivations for the travel ban were bigoted and racist. However, it does not take a J.D. to sense that such an opinion rests on shaky legal footing.

After reading the Ninth Circuit opinion issued in early 2017, I wondered whether it was the court, not the president, that was overstepping bounds. The central legal issue is whether the president has the authority to issue such an executive order and whether the content of the order is consistent with the rule of law. As long as the order itself is valid, then the motivation behind it matters little.

Otherwise, what the dissenters in this case essentially argue is that the same executive order issued by a different president who used less inflammatory rhetoric would be ok.

.@Judgenap: “Executive orders signed by Donald Trump and any subsequent president will be interpreted only on the basis of the words that are in the order." https://t.co/YJoYrCncJe @AmericaNewsroom pic.twitter.com/pULP5BryRV

— Fox News (@FoxNews) June 26, 2018

As Judge Nap recounts, this is what the majority SCOTUS opinion concluded. It is the text of the order that must be construed from a legal standpoint. The political or rhetorical backdrop have little standing. Stated differently, what matters under the law is what's in the law, not the personalities behind it.

Although it has been suggested that this sets an important legal precedent for interpreting executive orders, it is difficult to see how other approaches would be more consistent with the rule of law.