Sunday, April 29, 2018

On Muslim Ban, Justices Unfazed by Diplomatic Harm

      The Supreme Court's conservative majority was very troubled last week about the risk of diplomatic friction between the United States and other countries when they decided to bar suits in U.S. courts against foreign corporations for violations of international law. Writing for a 5-4 majority in Jesner v. Arab Bank (April 17), Justice Anthony M. Kennedy stressed that the government of Jordan had warned it would regard it as an affront to its sovereignty if the Jordanian-based Arab Bank were hauled into U.S. courts for helping to finance the terrorist organization Hamas.
      Kennedy noted concerns raised by a number of other countries about the recent discovery of the 225-year-old Alien Tort Statute as a vehicle for allowing human rights suits in U.S. courts against foreign individuals and companies for overseas human rights violations. In a forceful dissent, however, Justice Sonia Sotomayor noted that the State Department's legal advisor had signed briefs in this and one earlier case arguing against giving foreign corporations legal immunity for human rights violations.
      Foreign policy concerns are usually not part of the Supreme Court's job description, as Kennedy himself acknowledged in his opinion even while considering them. Given the debate in Tuesday's decision, however, it was ironic that the justices breathed not a single word during arguments the next day over the diplomatic harm the United States is already suffering from President Trump's anti-Muslim travel ban.
      The hour-long arguments in Trump v. Hawaii (April 18) left observers predicting a decision to uphold Trump's downsized version of the complete Muslim ban that he had promised in his campaign. The 18-page proclamation that Trump issued in mid-September stopped short of that goal, but imposed substantial limits on travel to the United States by individuals from seven countries, including five Muslim-majority nations in the Mideast and Africa.
      Trump has vented anti-Muslim animus both as candidate and as president to the evident detriment of U.S. standing not only in the Muslim world but also in many of the United States' closest allies. A global poll by the Pew Research Center last summer after courts had ruled against Trump's earlier executive order found that 62 percent of those surveyed disapproved of the travel ban and only 32 percent approved.
      The controversy over what opponents insist on calling the Muslim ban has contributed to a worldwide drop in public confidence in the U.S. president. Barack Obama left office in 2016 with 64 percent of respondents voicing confidence in him compared to 23 percent with no confidence. Six months into Trump's presidency, the results were flipped: 74 percent of respondents voiced no confidence in him and only 22 percent had confidence in him.
      In Indonesia, the world's most populous Muslim majority country, confidence fell from 64 percent under Obama to 23 percent under Trump. The decline in the United States' closest ally, Britain, has been sharper: from 79 percent to 22 percent. The controversy over the travel ban is one of several factors cited in the British government's decision to deny Trump a full-blown state visit this summer.
      Trump has been a diplomatic bull-in-the-china shop on a range of issues, of course: not just by imposing the Muslim travel ban, but also by pulling out of the trans-Pacific trade deal and the Paris climate change agreement. Those last two issues are outside the justices' concerns, but the travel ban touches directly on issues of equal treatment that fall within the Court's jurisdiction.
      Defending Trump's order, Solicitor General Noel Francisco minimized its scope. "This is not a so-called Muslim ban," Francisco told the justices, since it excludes "the vast majority of the Muslim world." In challenging the ban as illegally discriminatory, Neal Katyal, a former acting U.S. solicitor general, rejected Francisco's point by noting that an employer would be guilty of racial discrimination by firing an employee because of race even if others of that race were still on the job.
      No court has yet to uphold any of the three versions of Trump's travel ban. In the Hawaii case, the Ninth U.S. Circuit Court of Appeals ruled that the ban violated an immigration law provision that prohibits discrimination on the basis of nationality. In the separate case still awaiting Supreme Court review, the Fourth U.S. Circuit Court of Appeals found that the ban amounted to anti-Muslim discrimination in violation of the Constitution's religious liberty clause.
      Francisco defended the travel ban by insisting that the countries affected had been found by an interagency review to fall short in their vetting procedures for travelers to the United States. Chief Justice John G. Roberts Jr. was one of several conservatives who seemed ready to accept the review as washing away the taint from Trump's anti-Muslim rhetoric. The conservatives also appeared ready to give the president a wide berth on immigration issues even in the face of congressional actions to the contrary and even without any justification of its claimed national security concerns.
      The Court bases its decision on law, of course, not on public opinion, but it takes pains at time to stay within some broad range of public opinion. A recent poll conducted for Muslim Advocates found that only 36 percent of Americans approve of the travel ban compared to 44 percent who disapprove. Demonstrators on the day of arguments carried placards declaring immigrants and refugees to be welcome in the United States. But the Court that proudly promises equal justice under law seems headed in an opposite direction.

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