Travel ban has slippery slope to giving president too much power

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.

{mosads}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.

The possibility that Congress might not respond to a real emergency suggests that we must permit an infinite expansion of presidential power. Although cynicism about Congress is understandable, its acceptance by the court as the basis for rulings addressing bogus actions taken in the name of national security would amount to judicial abandonment of its role as guardian of the Constitution, which seeks to establish a democratic republic based on the rule of law.

Elected leaders have slowly destroyed democracies by creating the kind of divisions Trump has stoked by exaggerating national security threats, and attacking the courts and the press. Indeed, Poland and Hungary have lost democracies in part because their leaders fanned hatred toward Muslims. False or greatly exaggerated national security claims provide convenient excuses for seizing power and destroying liberty.

The Supreme Court, even before World War II, reviewed all executive actions, including presidential action, to make sure that they were not arbitrary. It regarded such review as essential to due process and to keeping a president within the confines of the powers Congress delegated to him. Wartime review of presidential action was deferential, but the court insisted that action taken pursuant to delegated authority must have a factual basis and an adequate rationale.

The Supreme Court upholds administrative agency actions alleged to be arbitrary 92 percent of the time. This suggests that the court can review a president’s national security determination when religious animus is shown without unduly intruding upon the president’s authority to seriously address real national security threats. If the court upholds this travel ban, it may keep us off of a small slippery slope and put us on a bigger one. Reviewing this ban for arbitrariness provides a way out.

David Driesen is a law professor at Syracuse University. He is the author of three books and has been published in the Cornell Law Review.