Syed Qamar Afzal Rizvi
THE US Supreme Court ruled last Tuesday in favor of President Donald Trump’s September order to restrict travel from several majority Muslim countries to the United States. The travel restriction, the Administration’s third, affects people from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Chad was dropped from the listed countries in April. In the 5-4 opinion written by Chief Justice John Roberts, the court found that Trump’s travel restriction fell squarely within the President’s authority. The Court’s decision, a reflection on judicial activism against judicial restraint, seems to have kept aside the law of natural justice in that the US Chief Court judges have observed national security concerns as objective considerations; whereas the fundamental rights as subjective considerations. In the US social/legal community, demonstrations and criticisms abound. The American Civil Liberties Union and Democratic lawmakers strongly denounced the Court’s ruling since it is not impeccable.
In February 2018, the Richmond, Virginia-based 4th US Circuit Court of Appeals, on a 9-4 vote, became the second Federal Appeals Court to rule against the ban, finding that the Republican President’s own words demonstrated that bias against Muslims was the basis of the policy. The US Supreme Court allowed the ban, put in place by Trump by presidential proclamation in September, to go into effect while litigation challenging it continues. The 4th Circuit ruling went further than the earlier decision by the San Francisco-based 9th U.S. Circuit Court of Appeals, which found the ban violated federal immigration law but did not address whether it also violated the Constitution.
The US Chief Court has now rejected claims that the ban was motivated by religious hostility. Justice Sonia Sotomayor, in a blistering dissent, said the Court was wrong to ignore Trump’s various comment on the ban. She also compared the Court’s opinion to one that came down in 1944 in which the court blessed the internment of Japanese-Americans during World War II. That case is Korematsu v United States. Chief Justice John Roberts declared that the 1944 case, Korematsu v United States, was no longer good law and was wrongly decided.
Philadelphia leaders of faith gathered on last Tuesday after the U.S. Supreme Court’s decision upholding the travel ban on citizens of Muslim-majority countries to decry the decision as a legal advancement of white nationalism, bigotry and xenophobia. “We are a country of law,” said Kenneth Nurridin, Imam of the Philadelphia Masjid, said at a gathering hosted by the CAIR (Council on American-Islamic Relations) Philadelphia Chapter. Traditionally, the Court has been reluctant to argue from universal principles not announced in the Constitution’s text, or at least to do so in an articulate and systematic fashion. It has preferred limiting itself to the text of the Constitution, statutes or treaties wary of going beyond these texts or the intent of their framers and ratifiers.
Nevertheless, the Court has on many occasions engaged in a variety of natural-law analyses. The notion of natural law pervaded the period of the American founding. It was expressed in the Declaration of Independence’s claims of “self-evident truths” about human equality, the necessity of consent, and the right to revolution. The Court’s use of natural-law principles experienced a revival in the years before the Civil War. This revival was a response to some of the excesses of state legislatures during these years. Both state constitutions and state courts limited legislative power. The New York Court of Appeals began to apply its state constitution’s declaration that no person could be deprived of life, liberty or property without due process of law (a precept originally expressed in Chapter Thirty-Nine of Magna Carta, and in the Fifth Amendment of the U.S. Constitution) . This way of interpreting the phrase “due process of law” suggested that the phrase meant something more than the government’s exercise of power according to recognized procedure (often called “procedural due process”).
It implied that there were fundamental or natural rights that government could not violate regardless of the forms it followed (which interpretation has been called “substantive due process” positively enshrined in the Fourteenth Amendment). Arguably, the Governments must give reasons, because governments don’t have rights. They have powers—“just powers” derived, as the Declaration of Independence says, “from the consent of the governed,” and to be used, and honestly explained, for the good of the public. The Supreme Court has generally deferred to the executive branch, especially on immigration, if the government can produce a rationale for the policy that isn’t discriminatory. The Trump Administration argued that the third version of the travel ban was a well-thought-through process solely based on security concerns about information-sharing. The Supreme Court bought this Lockean argument as its legem dicere by discarding the notion that there exists organic connect between natural law and the Constitution.
The US Chief Court has exercised judicial activism advocated by the white nationalist narrative once fervently supported by Justice Hogu Black famously known for his ardent affiliation with the Ku Klux Klan. The core question is: How can the Trump government, on the pretext of its national security concerns, undermine the natural rights substantially incorporated in the US constitutional archetypal-American Declaration of Independence and principally defended by the Universal Declaration of Human Rights? “Legitimate national security interest” refers to an interest the genuine purpose and primary impact of which is to protect national security, consistent with international and national law.
To many legal experts, human rights organisations, and legal forums, the US Chief Court’s ruling is intrinsically prejudicial to the USCIS adhered American value of cultural diversity upholding the law of natural justice and therefore it challenges the vey fundamentals of US Constitution. And incontrovertibly, the ruling seems to have encouraged the negative drives of ‘cultural and political exclusivism’ against the Muslim community vindicated by the ongoing rise of Islamophobia in the West.
— The writer, an independent ‘IR’ researcher-cum-analyst based in Karachi, is a member of European Consortium for Political Research Standing Group on IR, Critical Peace & Conflict Studies.