Why did Donald Trump banned Muslims

U.S. Supreme Court on Trump's Travel Ban: Checked with caution

29437

Guest contribution by Dipl.-Jur. Desirée C. Schmitt, LL.M.

28.06.2018

No violation of the U.S. Constitution: Desirée C. Schmitt analyzes how the court came to its decision, what the dissenting votes say and what conclusions can be drawn from them.

It is the third attempt to restrict entry to the USA for reasons of "national security". In his presidential decree on the so-called Travel Ban, Trump ordered a permanent, partly full, partly limited entry ban for citizens from a total of eight countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia.

The U.S. With its decision, the Supreme Court has now turned its back on those of the lower-level courts in interim legal protection. The Supreme Court ruled that the Travel Ban is both encompassed by the President's immigration authority and in line with the freedom of religion set out in the U.S. Constitution.

Travel Ban is covered by the competence of the President

According to U.S. Supreme Court on the competence of the President under 8 U.S.C. Section 1182 (f) covered. This provision of the Immigration and Nationality Act empowers the President to suspend the entry of all foreigners or groups of foreigners as immigrants or non-immigrants, or to restrict their entry with such restrictions as he deems appropriate. The president has to come to the conclusion that the entry harms the interests of the USA.

The Supreme Court emphasized that it only assumed that it could even review this broad competence of the President. In any case, the President had adequately stated that his decision was based on specific security concerns and was thus made to protect the interests of the USA.

The 8 U.S.C. Section 1152 (a) (1) (A) is the President in such an order to the U.S. Not bound according to the Supreme Court. This provision is only relevant when it comes to issuing visas for the purpose of immigration. However, this is not about visa decisions, but about the upstream determination of when immigration is generally permitted.

No violation of religious freedom

According to the U.S. Supreme Court, the proclamation does not violate religious freedom either. The plaintiffs had argued that the Travel Ban was actually discriminating against Muslims on the pretext of national security and thus running counter to the state's duty to neutralize the "Establishment Clause". Based on the statements made by President Trump in the pre-election campaign (keyword "Muslim Ban") and also after the inauguration, this suspicion was obvious, since citizens of predominantly Muslim countries are particularly affected by the entry ban.

Here, too, the Supreme Court initially made it clear that it only assumed that it could review the executive act for its compatibility with the First Amendment to the U.S. Constitution. Such a control in the field of foreign affairs and national security could only be of a superficial nature according to established case law anyway, due to a softer test standard. Therefore, the court does not go into which statements of the President - before or after inauguration - could be taken into account. The measure itself is formulated neutrally and plausibly, and any underlying intent is irrelevant.

Control only on the basis of the mildest test standard

"Hypothetically", the court carried out a test according to this mildest test standard, the so-called rational basis test. Interventions in constitutional rights are justified according to this, "[when] the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes." Loosely translated, this means that immigration policy must be plausibly related to the government's goal of protecting the state and improving security checks. Since the government stated that the selection of states was based on a security assessment, the connection between the entry ban and the goal of protecting national security, according to the U.S. Supreme Court made plausible. The executive must decide whether the measure is actually effective. Their assessment in this regard cannot be replaced by that of the court.

The U.S. For these reasons, the Supreme Court overturned the Hawaiian Court's injunction and referred the case back for final decision. This will now have to refuse an interim order, since the chances of success in the main taking into account the judgment of the U.S. Supreme Court have sunk to zero.

The divided court

The fault line between the two camps of majority and minority also corresponded to that between conservative and liberal judges at the court. The moderately conservative judge Kennedy agreed with the result of the judgment, but made it clear that even with limited or even excluded judicial review there is an obligation to uphold the constitution. "An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts."

Judge Thomas, also from the conservative camp, wrote an affirmative vote. He criticized the fact that the interim orders of the lower-level courts were extended nationwide, i.e. beyond the individual pending cases, the implementation of the executive measure was stopped altogether. Judge Thomas questioned the competence of the courts in this regard and warned against an excessive practice.

The usual team of liberal judges Breyer, Kagan, Sotomayor and Ginsburg voted against the five conservative judges. Breyer and Kagan examined the individual waivers from the Travel Ban. These would provide information about whether the executive act harbored ill will ("animus") towards Muslims or not. Since in practice no use was made of the waiver options, a discriminatory intention suggests that the appeal to national security and thus the competence of the 8 U.S.C. Section 1182 (f) would exclude.

The judges Sotomayor and Ginsburg also wrote a dissenting vote in which they - as the only one - affirmed a violation of religious freedom of the First Amendment to the U.S. Constitution. In doing so, they relied on the statements of Trump and the events surrounding Travel Bans No. 1 to 3. The appeal to the protection of national security is only an "outer packaging" that cannot hide the actually discriminatory character:

"The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a" total and complete shutdown of Muslims entering the United States "because the policy now masquerades behind a façade of national security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. "

Careful decision with far-reaching consequences

The U.S. Supreme Court with the question of whether the executive order is at all subject to judicial review and, if so, based on which review standard. Ultimately, the court did not finally decide the issue. He has thus created flexible handling for future case constellations. The court has left a back door open by focusing more on the - controversial - neutral formulation of the measure and the presentation of security concerns. If discrimination is evident from a first glance at the wording of the order, the court could decide differently the next time.

In addition, the U.S. Supreme Court ended another smoldering dispute. So far, at least the highest court has not yet clearly decided whether the family members in the USA, the so-called sponsors, can assert a violation of the constitution if their family members living abroad are prevented from entering or immigrating. It should be noted that immigrants themselves do not have any constitutional rights because they are outside of U.S. territory. They are also barred from access to the courts, which is why the role of sponsors is crucial. The U.S. The Supreme Court has now ruled that sponsors in the United States have legal standing based on their interest in being reunited with family members.

Warning to Trump, soothing word for the rest of the world

The Supreme Court also exerted pressure to give reasons. The government was not just before the U.S. Supreme Court forced to give a more detailed explanation of their measure. This enables the courts to exercise their control function vis-à-vis the executive branch - taking into account the wide freedom of action in foreign affairs. A different result on the basis of relevant case law was quite conceivable. Because the case law of the U.S. The Supreme Court provides special features for the review of immigration laws of the Congress (Fiallo v. Bell) as well as visa decisions of the consular officer (Kleindienst v. Mandel). Even if the Supreme Court only carried out a "hypothetical" review in the present case, this at least points in the direction of the verifiability of the presidential action in immigration matters.

Judge Kennedy's choice of words is particularly striking. It sounds like both a warning to President Trump and a reassurance for the rest of the world: We take our role as guardians of the constitution seriously. This should also apply to the national security claim. Because the national security argument is not a talisman that can be used indefinitely. "Although national security is unquestionably an issue of paramount public importance, it is not" a talisman "that the Government can use" to ward off inconvenient claims — a ‘label’ used to ‘cover a multitude of sins."
Justice Kennedy announced on Wednesday that he will be retiring. His decision will reorganize the political composition of the Supreme Court.

Dipl.-Jur. Desirée C. Schmitt, LL.M. is a research assistant at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.

Dipl.-Jur. Desirée C. Schmitt, LL.M., U.S. Supreme Court on Trump's Travel Ban: Checked with caution. In: Legal Tribune Online, June 28, 2018, https://www.lto.de/persistent/a_id/29437/ (accessed on: May 19, 2021)

Information on the suggested citation
  • In politics, as always, it only depends on the result. Judge Kennedy is out of the window. Tomorrow no one will be interested in what kind, friendly farewell words he has found. For Trump, life is a zero-sum game in which there are only winners and losers. The latter just can't stand him.

    M.D.
  • Trump will appoint at least 2 other judges for life. The usual game of the regressive left about activist judges who decide based on emotions (see Ginsburg) to push their agenda through has finally failed. The midterms will be a bloodbath for the Democrats, who through the outrageous Russia story have only shown how hateful and rabid they are.

    The pendulum swings back hard worldwide and we are all there live. Buckle up and enjoy the show.

    Game over
  • "The midterms will be a bloodbath for the Democrats". Well, if the wish is not the father of the thought. The approval ratings for a US president were already higher ...

    TK
  • Trump has exhausted his leeway of state sovereignty in favor of national security. For Ms. Merkel, this is an exemplary process for combating mediocrity.

    Carlos
    • Possible. Or he has got his electorate, which is not exactly blessed with abundant intellect, in the mood and made the USA even more hateful in many Muslim-dominated countries. One may doubt that this will serve national security in the long term ...

    • It would of course be much better to please the Islamic mob that is raging in many places and to allow all people on earth to enter. So like with us!

    • Oh how nice, there it is again, the arrogance that helped Trump to win the election. The whole thing is paired with the logical masterpiece: "If you take measures against political Islam / demographic risks of Muslim immigration / etc., Then the poor, otherwise of course totally peaceful Muslims, suddenly and completely through no fault of their own, become radicals who have to defend themselves. It's only Trump's fault! "

      Do you actually notice how condescending and degrading you express yourself about other people? It seems to me that is not the case.

    • So do we like the "Islamist mob raging in many places" and let "all people on earth" enter the country? The last time I checked, the death toll from Islamist terrorism, mind you in the entire history of the FRG, was in the low double-digit range. Don't get me wrong: every dead person is one too many. In view of the "raging Islamist mob", however, I would not expect thousands more people to die in traffic within a year.

    • "Condescending and degrading"? Nowhere did I claim that the "poor" Muslims "had to" fight back. However: if you declare a whole group to be the enemy, it is not surprising when the voices of fanatics who claim "The West has always been against you" fall on fertile ground.

      It's not just about political Islam, let alone Islamists. Trump has Muslims as such in his sights, regardless of whether they adhere to a strict, a political or a liberal Islam. And that's exactly where the problem lies, because then more people feel excluded and become susceptible to messages of hate.

    • How do you come across terrorism in this context? It's about the silly burning of preferably American and Israeli flags and the chanting of death to the XYZ shouting whenever the mob has any fart across because someone has insulted their Allah or done something that is totally haram. This happens in many places, but (still) relatively seldom here.

      And not everything that lags is a comparison. The fatalities in road traffic are serious, but according to the current state of the art, they are probably still unavoidable. The failure to try at least halfway to check who is coming to all this is, however, absolutely reprehensible.

    • You have just confirmed my point exactly once again and directly admit that, in your opinion, Muslims are completely emotion-driven irational beings who only know how to react to supposed exclusion with hatred and violence. Thanks a lot for this.

    • I have not yet heard that American flag burning would be a major problem in the United States. It is quite common in countries in the Middle East, that is correct. However: have you ever wondered why that is? Maybe it is because people (whether justified or unjustified in individual cases) have the feeling that the USA is treating them as second-class people who are completely irrelevant to the West, as long as it can only assert its economic interests. It is precisely this impression that needs to be counteracted! And here the Trumpian approach is exactly the wrong way. Incidentally: "Death to ..." is also found enough among white racists in the USA.

      In spite of the overwhelming demands of our authorities, I also cannot see that the "attempt to at least halfway to check who is going to do all this [sic!]" Would be omitted.

    • "You have just reconfirmed my point exactly and directly admit that, in your opinion, Muslims are completely emotion-driven irational beings who only know how to react to supposed exclusion with hatred and violence."

      This has nothing to do with Muslims, but is simple mass psychology that applies to the vast majority of people, to many Muslim people in the Middle East as well as to people from the Christian, white working class of the USA who feel left behind.

    • Normally I would ask if you need a shovel, but you can keep digging your own hole just fine. Clean performance.

    • "Perhaps it is because people (whether justified or unjustified in individual cases) have the feeling that the USA is treating them as second-class people who are completely irrelevant to the West, as long as it can only assert its economic interests. "
      It may also be because many Muslims are indoctrinated with hatred from an early age. Or the fact that education is not too far off in many such regions because memorizing the Koran and praying five times a day are simply more important?
      In addition, the Muslims had already beaten each other's heads before America was even discovered. The West is not to blame for everything that happens in the Middle East (by the way, neither is you!).

      What exactly are our authorities doing? Even the cell phones of those who of course have lost their passports are not allowed to be checked for origin or identity. Sensible tests to verify the age may not be carried out with reference to the oh-so-high radiation exposure. Any idiot, even with an entry ban, can come here again.

    • "Normally I would ask if you need a shovel, but you can keep digging your own hole just fine. Good performance."
      Perhaps try counter-arguments that point out where I'm wrong instead of using metaphors.

    • "The Muslims" aren't all the same either? Education is not far off in many other regions, including parts of the United States itself.
      When it comes to beating each other's heads, the European Christians are in no way inferior to the Middle Eastern Muslims. Incidentally, where you are already referring to history: Historically, the level of education / research in Muslim countries was far higher than in medieval / early modern Europe.

      You are quite right that the West is not to blame for everything that happens in the Middle East. However, they pretend that he is not to blame for anything (relevant).

      As I said, there are deficits, I don't even want to deny that. You can also discuss where the boundaries are in detail (with smartphones it is important to respect the right to guarantee the integrity and confidentiality of information technology systems). Age tests are partly controversial even among medical professionals. But the assumption that there is simply nothing to be done to register people is simply wrong - and you know that.

    • Your whataboutism only shows your helplessness. Now butter for the fish: Muslim societies have never gone through a phase of enlightenment. That is why they only know secular states from hearsay, if at all, have about as much to do with Western values ​​such as freedom and personal responsibility as a Christian around 1450 and are involved in all relevant fields (science, sport, culture, etc.). completely lost the connection. The "liberal" Muslims you quoted also exist, but viewed globally (unfortunately!) They have no influence at all (at best, at worst, they are threatened with death by their fellow believers).

      Of course, nothing is done. That was just an exaggerated representation. But if someone wants to make use of the services we have generated, then I expect that they will do everything to at least clarify their identity (let's ignore the fact that it seems strange that many, many are supposed to be theirs Passports, but never lost their cell phone). The state's interest in the proper clarification of identity must have absolute priority. And if I have really fled war and persecution and have found a society that will take me in and take care of me, that is also reasonable.

      The dose of radiation you are exposed to when x-raying your age is about the same as on a flight to the United States. So absolutely negligible and reasonable. But there is also a huge theater here.

      All of this and other circumstances (such as the fake news spread through the mainstream media at the beginning of the "refugee" crisis) have turned the mood in the country. One should urgently take countermeasures. In any case, it has long been a long time since the problems could be solved with "close your eyes and through".

  • It amazes me. Until recently, I assumed that the Supreme Court would have to adhere to the guidelines from the Daily Topics and today's journal.

    McMac
  • 06/28/2018 3:47 PM, Carlos
    Trump has exhausted his leeway of state sovereignty in favor of national security. For Ms. Merkel, this is an exemplary process for combating mediocrity.

    Reply to this comment
    06/28/2018 4:02 p.m., TK
    Possible. Or he has got his electorate, which is not exactly blessed with abundant intellect, in the mood and made the USA even more hateful in many Muslim-dominated countries. One may doubt that this will serve national security in the long term ...

    06/28/2018 5:04 p.m., McMac
    It would of course be much better to please the Islamic mob that is raging in many places and to allow all people on earth to enter. So like with us!

    06/28/2018 5:05 p.m., @TK
    Oh how nice, there it is again, the arrogance that helped Trump to win the election. The whole thing is paired with the logical masterpiece: "If you take measures against political Islam / demographic risks of Muslim immigration / etc., Then the poor, otherwise of course totally peaceful Muslims, suddenly and completely through no fault of their own, become radicals who have to defend themselves. It's only Trump's fault! "

    Do you actually notice how condescending and degrading you express yourself about other people? It seems to me that is not the case.

    06/28/2018 5:12 PM, TK
    So do we like the "Islamist mob raging in many places" and let "all people on earth" enter the country? The last time I checked, the death toll from Islamist terrorism, mind you in the entire history of the FRG, was in the low double-digit range. Don't get me wrong: every dead person is one too many. In view of the "raging Islamist mob", however, I would not expect thousands more people to die in traffic within a year.

    06/28/2018 5:16 PM, TK
    "Condescending and degrading"? Nowhere did I claim that the "poor" Muslims "had to" fight back. However: if you declare a whole group to be the enemy, it is not surprising when the voices of fanatics who claim "The West has always been against you" fall on fertile ground.

    It's not just about political Islam, let alone Islamists. Trump has Muslims as such in his sights, regardless of whether they adhere to a strict, a political or a liberal Islam. And that's exactly where the problem lies, because then more people feel excluded and become susceptible to messages of hate.

    06/28/2018 5:22 PM, McMac
    How do you come across terrorism in this context? It's about the silly burning of preferably American and Israeli flags and the chanting of death to the XYZ shouting whenever the mob has any fart across because someone has insulted their Allah or done something that is totally haram. This happens in many places, but (still) relatively seldom here.

    And not everything that lags is a comparison. The fatalities in road traffic are serious, but according to the current state of the art, they are probably still unavoidable. The failure to try at least halfway to check who is coming to all this is, however, absolutely reprehensible.

    06/28/2018 5:24 PM, @TK
    You have just confirmed my point exactly once again and directly admit that, in your opinion, Muslims are completely emotion-driven irational beings who only know how to react to supposed exclusion with hatred and violence. Thanks a lot for this.

    06/28/2018 5:32 PM, TK
    I have not yet heard that American flag burning would be a major problem in the United States. It is quite common in countries in the Middle East, that is correct. However: have you ever wondered why that is? Maybe it is because people (whether justified or unjustified in individual cases) have the feeling that the USA is treating them as second-class people who are completely irrelevant to the West, as long as it can only assert its economic interests. It is precisely this impression that needs to be counteracted! And here the Trumpian approach is exactly the wrong way. Incidentally: "Death to ..." is also found enough among white racists in the USA.

    In spite of the overwhelming demands of our authorities, I also cannot see that the "attempt to at least halfway to check who is going to do all this [sic!]" Would be omitted.

    06/28/2018 5:34 PM, TK
    "You have just reconfirmed my point exactly and directly admit that, in your opinion, Muslims are completely emotion-driven irational beings who only know how to react to supposed exclusion with hatred and violence."

    This has nothing to do with Muslims, but is simple mass psychology that applies to the vast majority of people, to many Muslim people in the Middle East as well as to people from the Christian, white working class of the USA who feel left behind.

    06/28/2018 5:42 PM, @TK
    Normally I would ask if you need a shovel, but you can keep digging your own hole just fine. Clean performance.

    06/28/2018 5:42 PM, McMac
    "Maybe it's because people (whether justified or unjustified in individual cases) have the feeling that the USA is treating them as second-class people who are completely irrelevant to the West, as long as it can only assert its economic interests. "
    It may also be because many Muslims are indoctrinated with hatred from an early age. Or the fact that education is not too far off in many such regions because memorizing the Koran and praying five times a day are simply more important?
    In addition, the Muslims had already beaten each other's heads before America was even discovered. The West is not to blame for everything that happens in the Middle East (by the way, neither is you!).

    What exactly are our authorities doing? Even the cell phones of those who of course have lost their passports are not allowed to be checked for origin or identity. Sensible tests to verify the age may not be carried out with reference to the oh-so-high radiation exposure. Any idiot, even with an entry ban, can come here again.

    06/28/2018 5:46 PM, TK
    "Normally I would ask if you need a shovel, but you can keep digging your own hole just fine. Good performance."
    Perhaps try counter-arguments that point out where I'm wrong instead of using metaphors.

    06/28/2018 5:52 p.m., TK
    "The Muslims" aren't all the same either? Education is not far off in many other regions, including parts of the United States itself.
    When it comes to beating each other's heads, European Christians are in no way inferior to Middle Eastern Muslims. Incidentally, where you are already referring to history: Historically, the level of education / research in Muslim countries was far higher than in medieval / early modern Europe.

    You are quite right that the West is not to blame for everything that happens in the Middle East. However, they pretend that he is not to blame for anything (relevant).

    As I said, there are deficits, I don't even want to deny that. You can also discuss where the boundaries are in detail (with smartphones it is important to respect the right to guarantee the integrity and confidentiality of information technology systems). Age tests are partly controversial even among medical professionals. But the assumption that there is simply nothing to be done to register people is simply wrong - and you know that.

    tüdelütütü
  • Ms. Schmitt writes about US law with such expertise that after every article you get the impression that you have learned a lot again.

    What does shock me as a student is the approach of the USSC. In this respect, constitutional law is only examined superficially. In terms of content, the gate is opened wide for the President. But if the SC, who is supposed to protect the constitution?

    It is difficult to gain anything from this approach with a German understanding.

    Great article
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