Earlier by Judd Benjamin: Fourth Circuit Bobos Put Judiciary On Collision Course With America
Pop the champagne corks! In Hawaii v. Trump, the U.S. Supreme Court upheld by a 5-4 vote the Administration’s travel ban order. Chief Justice John Robert’s majority opinion ruled that reasonable immigration restrictions to protect our county are constitutional. But turn to the opinion’s two dissents—one by Justice Sonia (“Wise Latina”) Sotomayor joined by Justice Ruth Bader Ginsburg, the other by Justice Stephen Breyer joined by Justice Elena Kagan—and the bubbly quickly loses its fizz. In fact, it’s positively sour.
That these particular justices dissented hardly surprises. But their reasoning is more than a buzz-kill; it must send a chill down the spine of all supporters of patriotic immigration reform. Without putting too fine a point on the matter, these dissents aim to end serious debate about immigration by labeling as “animus” perfectly reasonable and valid claims about differences among national groups, ethnicities, and religions.
These dissents point to President Trump’s observations that Muslims are more likely to commit terrorist acts and less likely to assimilate well into Western societies. Rather than see these observations as largely factual claims or reasonable historical interpretations appropriate to the rough-and-tumble democratic process, the dissents label them “animus”—i.e. impermissible hate.
By so labeling these facts, these dissents pose an obvious threat to politicians: make judgements about certain minority groups, dare mention certain unmentionable truths, try to educate the American public about immigration—and face a judiciary that will strike down your administrative actions as unconstitutional “animus.”
The dissents reflect what political philosopher Paul Gottfried has observed: our Cultural Marxist elite pathologizes and criminalizes its political opposition. Those who make reasonable generalizations about immigrating groups are not simply wrong; there are irrational “haters.”
As the parlous state of free speech on campus shows, the Left, when it has power, will label as hate those arguments that it cannot answer. That these dissents were one vote from law of the land is a sobering thought.
To fully understand how bad the dissents are, consider first the majority opinion, written by Chief Justice Roberts. It is workmanlike stuff. The opinion observes that the President by statute may “restrict the entry of aliens whenever he finds that their entry would be detrimental to the interests of the United States.” Roberts examines the text of the order, showing that it restricts immigration from countries that lack the ability to verify their travel documents’ integrity, properly disclose information about their citizens’ criminal history, or respond to our national security concerns. In other words, the order has nothing to do with Islam.
The majority opinion points out that presidents often used this power without comment, as when Clinton banned immigration from Sudan, and no one batted an eye. Last, the opinion rejected plaintiffs’ request for a “searching inquiry” into the President’s motives. Such a move, Chief Justice Roberts reasoned, would be inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.
In contrast, the dissents dove into a “searching inquiry” into the President’s motives, putting him on the therapist’s couch and making dire diagnoses about his soul. No surprise, they found it wanting, i.e., filled with animus and bias towards Islam.
But the dissents aimed at more than Trump. They create an outline for outlawing all discussion critical of immigration. By labeling reasonable generalizations about Muslims or fair historical interpretations of Islam as “animus,” they place politicians and everyone else on notice—say these things and face judges who will confirm that your views are unconstitutional hatred. The dissents follow Gottfried’s diagnosis of how supporters of the “liberal” welfare state must educate the populace into proper views by suppressing dissent.
Sotomayor’s dissent consists of cherry-picked statements from the President. She contends they “pain[t] a…harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.”
But the examples in Sotomayor’s hall of harrows do not seem to brim with hatred—at least to this observer. She points to Trump’s statement “calling for a total and complete shutdown of Muslims entering the United States.”
But foreigners have no constitutional rights; Muslims commit disproportionate amounts of mass terrorism in the United States, committing the vast majority of terrorist acts across the globe. [The plague of global terrorism, The Economist, November 18, 2015] Protecting American citizens requires identifying dangerous groups and banning them. Such an approach might be highly risk-averse, but it is reasonable if you place American safety as the highest goal.
Sotomayor points to Trump’s call for surveillance of mosques in the United States. That’s hardly irrational: it is a policy that many law enforcement agencies have pursued. She points to his blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” But, there are countless examples of Islamic immigrants’ problems with immigration, from female genital mutilation in Michigan to honor killings. And, indeed, according to the Pew Center, majorities and pluralities of Muslims in countries all over the world favor imposition of Sharia, even in England. [The World’s Muslims: Religion, Politics and Society, Pew, April 30, 2013]The problems of Muslim assimilation and support for Sharia are so great that even liberal mainstays like well-known atheist Sam Harris concede the problem. [The Reality of Islam, SamHarris.org, February 8, 2006]
Sotomayor quotes, as a supposed coup de grâce, Trump’s statement that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”
Well, that’s an empirical question isn’t it—not a vomitous expression of hate. The Somali community in Minneapolis, our home grown Muslim terrorists like Major Nidal Malik Hasan and Omar Mateen make it at least plausible that we have a Muslim problem. And while there is a prima facie showing for problems in this country, Europe proves the case in the banlieue of Paris, the no-go zones of Malmö, and the heart-breaking crimes in Rotherham and Oxfordshire.
And it’s not just Trump. Sotomayor, getting a bit overwrought, takes aim at a certain Frank Wuco, a Homeland Security officer who led the multi-agency review process to enforcing the travel ban. As proof of his “bias,” the dissent bleats that he has “publicly declared that it was a ‘great idea’ to ‘stop the visa application process into this country from Muslim nations in a blanket type of policy,’” “that Muslim populations ‘living under other-than-Muslim rule’ will ‘necessarily’ turn to violence, that Islam prescribes ‘violence and warfare against unbelievers,’ and that Muslims‘ by-and-large . . . resist assimilation.’”
Before Justice Sotomayor gave Mr. Wuco immortality in Supreme Court precedent, this author had no idea who he was. Look him up on the internet. He seems like a perfectly normal man. He apparently served in Naval Intelligence, started a security consulting firm, and afterwards took to radio journalism hosting a call-in show. And, gentle reader, he makes jokes about opportunistically claiming to be transgendered in order to shower in the women’s locker room. As if a majority of American men have not thought the same thing . . . [DHS senior adviser who has worked on travel ban claimed that “true” Muslims can’t peacefully “coexist” or “mingle with other faiths”, TravelNewsWire, January 23, 2018]
But Wuco’s experience might have taught him a thing or two about the threat Islam poses that is beyond Justice Sotomayor’s experience. His views, like President Trump’s, are only hateful if one wishes to enforce a Politically Correct orthodoxy that any unflattering generalization about a preferred group, no matter how factual or based upon expertise, expresses “hatred.”
President Obama can make condescending and false claims about rural white Pennsylvanians clinging to their guns and religion to explain their opposition to immigration, and the Great and Good would never think of labeling Obama hateful. But Wuco, by just observing that Islam, as a religion built upon military expansion, poses a threat to Western democracy becomes the poster boy for animus.
The Breyer decision is subtler, yet more pernicious. Justice Breyer reasoned that he could infer Trump’s “religious animus against Muslims” if the Order were implemented in a “rational” way. A rational implementation would involve “applying the exemption and waiver provisions as written.” Breyer then assembles a bunch of facts and anecdotes—some seemingly gleaned from the internet—and finds that few waivers were given. From this purported fact, Justice Breyer finds likely animus.
Of course, Breyer had no basis for knowing the correct number of waivers—or, if there should be any at all. He conjures up an impossible standard of “correct” application and then finds the President’s implementation wanting.
And, it is not as if Breyer is always so demanding in his review of Executive Action. When ruling on other challenged Executive Actions and regulations that he likes—and he is quite fond of regulation in general—he rarely demands such perfection. In most cases, he argues that judges should defer to the necessarily fact-bound and imperfect determinations that regulatory agencies must make.
Breyer hides his anti-Trump animus in the language of rationality and coherent administration. He writes in his dissent that if he had his druthers, he would keep the injunction against the travel order in place while the case is remanded back to the district court to examine his concerns. Of course, he knows full well how the rabidly anti-Trump district court will rule on remand—and knows that it will do his dirty work of making “findings” of Trump’s animus. Justice Breyer could thereby kill the order he hates with clean hands, leaving him free to write airy legal confections about reasoned judicial review.
Together, the dissents are salvos in the Left’s multipronged attack on immigration sanity and American nationality. If you’re an academic and you say the wrong things about preferred groups, you’ll find yourself before a diversity enforcement tribunal. If you are a C.E.O., you’ll be out of a job. If you’re a politician, courts will stymie your administrative actions and undercut your position in public debate. Saying certain truths is simply to be verboten.
From Frank Wuco to Tommy Robinson, patriots in the West are learning this lesson.
The question is: what do they do about it?
Judd Benjamin (email him) is an American law professor.