Some BYU professors agree the Supreme Court’s 5–4 ruling that upheld President Donald Trump’s travel ban may have negative legal, ethical and constitutional implications.
The ruling came after waves of controversy on both ends of the political spectrum. The travel ban restricts travel from seven countries, five of which have Muslim majorities. President Trump and his supporters argue that it protects the United States from terrorism and secures the border, while others claim that the ban exposes an anti-Muslim agenda, tears apart families and deviates from American values.
The New York Times reported various New York City officials declaring that the Supreme Court was on the “wrong side of history” when they announced their ruling.
However, according to BYU immigration law professor Carolina Núñez, instead of looking to the future or present to understand this ruling, it’s more important to look back at the country’s history of immigration.
Starting with the Chinese Exclusion Act, our nation’s immigration law has been founded on a “notion of discrimination,” Núñez said. Over the past century, the law has moved away from discriminatory rulings “little by little.”
Núñez said those who study immigration law were particularly interested in this case and saw it as an opportunity to finally step away from a long history of discriminatory immigration law. She also said it’s still too early to tell if this decision was a step backward, but it was definitely not the opportunity for change many were hoping for.
“We wanted to see if the Supreme Court would once and for all say that some of the protections of the constitution apply to people who are coming for the first time to the United States,” Núñez said.
Instead, she said this ruling suggests Congress and the president can deal with incoming immigrants in a manner that would be unacceptable if it were applied to individuals in the U.S.
Núñez said the ruling also changed individuals’ perceptions of immigration law. “It is a step backward in people’s expectations of what the law is.”
BYU ethics professor Travis Anderson said the ruling is “problematic” not only legally but ethically.
“I doubt very much that there is any coherent or consistent reference to any particular ethical approach,” Anderson said.
Anderson based this idea on common decision-making patterns. “Most people tend to act with some degree of consistency in terms of the decisions they make,” Anderson said. He added that this has not been the case with Trump and his administration.
According to Anderson, the ruling paints the government as an organization that can no longer be trusted to operate consistently. It may also open the door to legitimizing one or more religious beliefs over others, which could lead to more prejudice and bias.
BYU constitutional law professor Justin Collings said the most important thing to keep in mind is that the Supreme Court’s decision is not declaring Trump’s biases or motives. Instead, their decision analyzed two main constitutional issues of the ban.
The first issue begged the question of whether the presidents have the authority to make this kind of executive order. Collings said that the justices answered this question easily and in the affirmative.
The “harder issue,” he said, is whether the ban goes against the religious establishment clause of the Constitution, which prohibits the biased governmental action for or against a religion.
According to Collings, this is the issue that the dissenting justices spent most of their time addressing. In other words, this is what divided the court.
“I think it’s important to realize that the majority is not endorsing anything the president has done, Collings said. “This opinion should be read more as a statement of the limits of judicial review than the constitutionality of the president’s actions.”
Despite this, Collings believes that the court should have done more, given that what he said was an obvious bias on Trump’s part.
“I think that when it’s clear that officials are acting with a religious bias, that the court’s review should be a little bit more searching,” Collings said.
For now, immigrants and citizens alike will have to live with the consequences of the ruling.
“People are always asking me questions about the future of immigration law, and I think the only real answer is that it’s very unpredictable at this point,” Núñez said.