In January 2017, when President Donald Trump’s so-called Muslim ban was first announced, I was passionately against it. It was one of the most frightening texts I’ve read from U.S. government officials in my lifetime. The Supreme Court just upheld the third iteration of the travel ban in Trump v. Hawaii, and I find myself in the odd position of opposing the court’s ruling on personal and moral grounds, while also thinking it was a legally plausible interpretation.
Like most political developments of the Trump era, there is a tension between having the “right” position and having the “correct” position. A pure anti-Trump position would entail opposing the court’s ruling regardless of its substantive content. This feels morally right—and it may even be the morally right—but that doesn’t necessarily make it correct. The Supreme Court, unlike Congress, is not tasked to make moral judgments about the law, at least not explicitly.
The first version of the travel ban, which, among other things, appears to have been intended to troll liberals, explicitly discriminated based on religion. The very fact of being Muslim was grounds for scrutiny. One clause, in particular, effectively imposed a religious test. Refugees facing religious persecution could be admitted but only if “the religion of the individual is a minority religion in the individual’s country of nationality.” The revised version, issued in September 2017, omits such language, and incorporates two non-Muslim countries, North Korea and Venezuela. Regarding Syrian refugees, this means that, in theory if not necessarily in practice, entry restrictions on Syrian refugees would apply equally to Muslims and Christians alike. Accordingly, Chief Justice John Roberts wrote that the president’s directive was “neutral on its face.”