David Driesen Pens OpEd About the Travel Ban & Presidential Power for The Hill

Posted on Monday 5/7/2018
David Driesen

Travel Ban Has Slippery Slope to Giving President Too Much Power

(The Hill | May 4, 2018) Lawyers frequently argue that accepting an argument in one context may lead to unacceptable consequences in another. Lawyers call this a slippery slope argument. The slippery slope dominated the oral argument on the legality of the administration’s travel ban before the Supreme Court in Trump v. Hawaii. No justice suggested that a sound national security rationale undergirds this travel ban.

But Justice John Roberts worried that recognizing the principle that the president cannot restrict travel on the basis of religion or nationality might have bad consequences at other times. He asked, for example, if the president could ban travel from Syria if 20 Syrians were about to enter the United States with chemical and biological weapons.

Roberts also asked about a longer lasting danger with Congress unable to pass legislation. The court’s conservative wing seemed inclined to uphold an unnecessary ban motivated by religious animus, because a decision striking down the ban might someday stop a president from unilaterally addressing a real danger.

But upholding this travel ban also would create a slippery slope. If neither the statutory restriction on nationality-based restrictions nor the Constitution’s prohibition of religious discrimination restrain the president’s authority to ban classes of aliens, then Trump could add all Muslim-majority countries to his travel ban list, perhaps adding some other countries as window dressing.

The court can avoid sliding down a slippery slope by issuing an opinion tied tightly to the facts. The court could hold that Trump’s statements about religion make this ban discriminatory. Such a ruling might limit Trump’s options in responding to security threats, but would likely have no effect on future presidents. Or the court could overturn this travel ban based on the lack of an adequate national security rationale, since no immigrants from the banned countries have carried out terrorist attacks.

A narrower approach would combine these two options. The court could hold that once religious animus is shown, the president must proffer a reasonably robust national security rationale for his actions. The court could more narrowly hold that the president must make the entire record available so it can judge whether the national security rationale provides a mere pretext for violating constitutional rights. The administration’s failure to put the full interagency review it conducted in the record suggests that it does not support the travel ban that Trump chose.

The court’s reluctance to review a proffered national security rationale at all puts our entire democracy on a dangerous slippery slope. Given the persistence of global terrorism, almost any action limiting our liberties, no matter how unnecessary at the time, can be justified as the type of national security measure that could be needed in the future ...

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