The five conservative Supreme Court justices who ruled for the government in Trump v. Hawaii - the travel ban case - cited many precedents for their decision. But their real inspiration was what we might call the “see no evil” doctrine - the same one so beloved of Republican members of Congress. All these conservative worthies pretend not to notice when President Donald Trump makes shocking, unconscionable statements.
Just this week, the president has denigrated the intelligence of an African-American member of Congress and implicitly threatened physical harm against her; suggested that a Democratic senator was drunk when he made statements that Trump didn’t like; singled out two private companies (the Red Hen restaurant and Harley-Davidson) for unwarranted abuse; and claimed, without an iota of evidence, that there was a conspiracy within the FBI to stop his election.
Good luck getting any Republicans to react to these vile verbal effusions. In their fantasyland, this is a perfectly normal, totally sane president who is delivering on important policy priorities such as tax cuts. Racism? Xenophobia? Conspiracy-mongering? Sheer nuttiness? In the immortal words of Sgt. Schultz: “I see nothing! I hear nothing!” House Speaker Paul Ryan, R-Wis., admitted as much when he sort-of joked at the Al Smith dinner last fall: “Every morning, I wake up in my office and scroll Twitter to see which tweets I will have to pretend that I didn’t see later.”
The five conservative justices applied this same approach to Trump v. Hawaii. They acted as if the travel ban were a rational response to a national security threat facing the United States - when, in reality, it was an attempt to codify Trump’s anti-Muslim animus into law. The court majority acknowledged the president’s troubling history of anti-Muslim statements, including his call in December 2015 for a “total and complete shutdown of Muslims entering the United States.” As a candidate, Trump also claimed that “Islam hates us” and said the United States was “having problems with Muslims coming into the country.”
Sure enough, one week after taking office, Trump issued an executive order banning all travel from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. There was no evidence that existing screening procedures were insufficient to deal with any threat posed by these travelers, as analysts at the Department of Homeland Security admitted. Rudolph W. Giuliani, then a presidential adviser and now his lawyer, candidly explained the origin of the travel order. It was an attempt to do the Muslim ban “the right way … legally.”
In fact, the first travel ban was struck down by numerous courts. The second iteration did not fare much better. Finally, in September 2017, the administration issued travel ban 3.0. This one covered countries deemed insufficiently cooperative in vetting travelers: Chad, Iran, Libya, North Korea, Somalia Syria, Venezuela and Yemen. It was still mostly Muslim nations, but with a couple of non-Muslim nations added for window dressing. Later, Chad was dropped after vociferous objections from its government, which cooperates with the United States to fight terrorism.
This order, again, had nothing to do with national security and everything to do with putting something before the Supreme Court that would allow the conservative justices to uphold a travel ban of some kind. Mission accomplished! On Tuesday morning, Trump crowed: “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”
Wow indeed. To achieve this result, the conservative justices cited the wide discretion given to presidents under the 1965 Immigration and Nationality Act to “suspend the entry of all aliens or any class of aliens” from the United States. It is a law, as they noted, which “exudes deference to the President in every clause.” What about the evidence that Trump did not act for national security reasons but out of hatred against Muslims?
Sonia Sotomayor’s dissenting opinion argued that Trump’s order was a violation of the establishment clause, which protects freedom of religion. The majority would have none of it. Chief Justice John Roberts wrote that the court is free to “uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” In other words, if smart lawyers can concoct some rational excuse for Trump’s irrational acts, then the resulting executive order will pass constitutional scrutiny.
This is the “see no evil” doctrine in operation, treating Trump as if he were a normal president making normal decisions for normal reasons after a normal policy review. Yet any reader of a newspaper knows that this is not the case - that Trump is, in fact, a mass of irrational prejudices who acts in disregard of expert advice in ways that are practically guaranteed to backfire. His travel ban, for example, has helped to alienate the very people whose support the United States needs to defeat terrorism. A recent survey of 16 Muslim countries found that the number of 18-to-24-year-olds who consider the United States to be an enemy has jumped from 32 percent in 2016 to 57 percent today.
The travel-ban ruling should disabuse anyone of the illusion that black-robed guardians can rescue us from Trump’s erratic and bigoted edicts. Only “We the People” can save this country, beginning in November.
Max Boot is a columnist with The Washington Post.