The Supreme Court majority ignored two treaties and customary law in upholding Donald Trump’s latest travel ban, which the president himself said targeted Muslims, reports Marjorie Cohn.
By Marjorie Cohn
The Supreme Court’s opinion last month in Trump v. Hawaii, affirming Donald Trump’s Muslim ban, has permitted the United States to act in flagrant violation of international law.
Under the guise of deferring to the president on matters of national security, the 5-4 majority disregarded a litany of Trump’s anti-Muslim statements and held that the ban does not violate the First Amendment’s Establishment Clause, which forbids the government from preferring one religion over another. Neither the majority nor the dissenting opinions even mentioned the U.S.’s legal obligations under international human rights law.
The travel ban violates two treaties to which the United States is a party: the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. It also runs afoul of customary international law.
Both of these treaties and customary international law prohibit the government from discriminating on the basis of religion or national origin. Trump’s Muslim ban does both.
Trump v. Hawaii “signals strongly that international law in general, and international human rights law in particular, no longer binds the United States in federal courts,” Aaron Fellmeth, professor at Sandra Day O’Connor College of Law, wrote me in an email. “Fortunately, it does not squarely hold that, but the effect may prove to be the same. For now, the Supreme Court appears determined to be complicit in U.S. human rights violations and cannot be relied upon as a check on the Executive Branch.”
The case that the Supreme Court ruled on involved the legality of Trump’s third travel ban. Issued by Trump in a “Proclamation” on September 24, 2017, the third iteration of the ban restricts travel by most citizens of Libya, Syria, Iran, Yemen, Chad, Somalia and North Korea. The ban forbids everyone from Syria and North Korea from obtaining visas. Nationals from the other six countries have to undergo additional security checks. Iranian students are exempted from the ban. The ban also forbids Venezuelan government officials and their families from traveling to the U.S.
More than 150 million people, roughly 95 percent of them Muslim, are affected by the ban.
Protestors at airports against Muslim ban in 2017.
Two prior iterations of the ban restricted travel of citizens from only Muslim-majority countries. After federal courts struck them down, Trump appeared to cosmetically added Venezuela and North Korea to avoid charges of religious discrimination.
As Justice Sonya Sotomayor, joined by Ruth Bader Ginsburg, wrote in her dissent, “it is of no moment” that Trump included “minor restrictions” on North Korea and Venezuela – two non-Muslim-majority countries. Travel by North Korean nationals was already restricted and the ban only bars travel by Venezuelan officials and their families.
Court Never Addressed International Law
All of the justices on the Supreme Court ignored significant international law arguments in their majority and dissenting opinions in spite of an amicus brief signed by 81 international law scholars, including this writer, and a dozen non-governmental organizations. The amicus brief drew attention to the travel ban’s violation of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, both of which the United States has ratified.
Ratification of a treaty not only makes the United States a party to that treaty, its provisions also become part of U.S. domestic law under the Supremacy Clause of the Constitution, which says treaties “shall be the supreme law of the land.”
Customary international law arises from the general and consistent practice of states. It is part of federal common law and must be enforced in U.S. courts, whether or not its provisions are enshrined in a ratified treaty. Courts have a duty to rein in federal executive action, which conflicts with a ratified treaty.
In Trump v. Hawaii, the high court concluded that the ban did not violate the Immigration and Nationality Act. The international law scholars argued in their amicus brief:
The Immigration and Nationality Act and other statutes must be read in harmony with these international legal obligations pursuant to the Supremacy Clause of the Constitution and long established principles of statutory construction requiring acts of Congress to be interpreted in a manner consistent with international law, whenever such a construction is reasonably possible.
But the Court did not construe the legality of the travel ban in light of U.S. treaty obligations and customary international law.
The the scholars argued that the primary thrust of the ban is to prohibit Muslims from entering the United States and thus constitutes religious discrimination. By singling out specific countries for exclusion, the ban also makes a prohibited distinction on the basis of national origin.
Sotomayor: Ban “masquerades behind a façade of national security.”
The International Covenant on Civil and Political Rights prohibits distinctions based on religion or national origin, which have “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing of human rights and fundamental freedoms,” the United Nation Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, has said.
Although the Covenant does not generally “recognize a right of aliens to enter or reside in the territory of a State party … in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise,” the Human Rights Committee opined.
The Covenant also prohibits discrimination against the family: “The family is the natural and fundamental group of society and is entitled to protection by society and the State.” Immigrants and refugees who flee their countries of origin and come to the United States to reunify with their families are protected by the Covenant against discrimination based on religion or national origin. They need not be physically present in the United States to enjoy these protections.
The non-discrimination provisions of the Covenant on Civil and Political Rights also constitute customary international law. In 1948, the United States approved the Universal Declaration of Human Rights, which is part of customary international law. The declaration forbids discrimination based on religion or national origin, guarantees equal protection of the law, and shields family life against arbitrary interference.
The International Convention on the Elimination of All Forms of Racial Discrimination also prohibits discrimination based on religion or national origin and doesn’t confine its non-discrimination provisions to citizens or resident non-citizens. While the Convention “does not speak specifically to restrictions on entry of nonresident aliens,” the scholars’ amicus brief states, “The general language of [the Convention Against Racial Discrimination] expresses a clear intention to eliminate discrimination based on race or national origin from all areas of government activity.”
States parties to the convention “shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.” Parties are required to outlaw speech that stigmatizes or stereotypes non-citizens, immigrants, refugees and people seeking asylum.
The Discriminatory Nature of the Travel Ban 
Even though the Supreme Court majority held that the ban did not violate the Establishment Clause of the First Amendment, much evidence exists to the contrary.
The Establishment Clause says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That means “one religious denomination cannot be officially preferred over another,” according to Supreme Court case law.
After quoting a few of Trump’s anti-Muslim statements, Chief Justice John Roberts noted, “the issue before us is not whether to denounce the statements” but rather “the significance of those statements in reviewing a Presidential directive,” that is “neutral on its face” because he text doesn’t specifically mention religion. Roberts said the Court was “addressing a matter within the core of executive responsibility,” adding, “We must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
Roberts wrote that the Court could consider the president’s statements “but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” Courts must give great deference to the president in immigration matters and will uphold his policy if it has any legitimate purpose, Roberts argued. “The entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility,” he said.
Sotomayor spent seven of the 28 pages of her dissent listing more than a dozen statements by Trump denigrating Muslims. She cited, in Trump’s words, the policy’s initial purpose as a “total and complete shutdown of Muslims entering the United States.” But that policy “now masquerades behind a façade of national security concerns,” Sotomayor wrote.
She quoted a Trump adviser who said, “When [Donald Trump] first announced it, he said, ‘Muslim ban.’” Sotomayor also listed Trump’s declarations that “Islam hates us,” “we’re having problems with Muslims coming into the country,” and “Muslims do not respect us at all.”
Trump said President Franklin D. Roosevelt “did the same thing” with his internment of Japanese Americans during World War II, Sotomayor noted. Trump told a story about General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pig’s blood. When he issued his first ban, Trump explained that Christians would be given preference for entry as refugees into the United States. He also retweeted three anti-Muslim videos.
“Taking all the relevant evidence together,” Sotomayor wrote, “a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national security justifications.” The Proclamation, she added, “is nothing more than a ‘religious gerrymander.’”
Looking Ahead
There is hope that the most abhorrent effects of this case can be mitigated. Yale law professor Harold Hongju Koh wrote on Scotus blog that transnational actors — including nation-states, international organizations, non-governmental organizations, multinational enterprises and private individuals — will invariably file litigation in international fora based on international law to lessen the impact of the ruling in Trump v. Hawaii:
[A]s they have done against other Trump policies, other transnational actors will invoke what I have called “transnational legal process” to contest and limit the impact of the court’s ruling. As they did after losing the Haitian interdiction case at the Supreme Court 25 years ago, litigants will surely seek out international fora to make arguments against the travel ban based on international law.
The Constitution’s Take Care Clause requires the president to “take care that the laws be faithfully executed.” Trump has a constitutional duty to comply with U.S. legal obligations under both treaty and customary international law.
This article was reprinted with permission from TruthOut.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and an advisory board member of Veterans for Peace. An updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was recently published. Visit her website: http://marjoriecohn.com.
National Security is the fig leaf hiding the ‘private parts” of whatever the government wants to keep from the prying eyes of those annoying pests, citizens. In the case in point it is to conceal our president’s fear of the “other”.
If the Supreme Court is to be in the future as it is at present, a reliable mouthpiece for the party under whose hand a majority of the justices were appointed, I see no reason for paying other than passing attention to its pronouncements.,
Here are many good comments regarding a temporary ban of unvetted people from US enemy countries, and not a “Muslim ban” which might have included the countries with the most Muslims, Indonesia India and Pakistan, but didn’t.
It’s ridiculous. It targets countries where terrorists are, and they just so happen to be mostly, but not all Muslim.
While I am virtually always in-favor of humane international law, unfortunately for all the 50+ yrs that I’ve followed politics off-and-on in this country, the powers-that-be have never considered it anything more than a strategic PR tool — act shocked and outraged when one of our official enemies breaches it (real or otherwise), but ignore and deride it when we or our allies are the offender. A stunning example to me was back in the 1990’s when we were doing our ‘humanitarian bombing’ in the Balkans and one of our planes was shot-down and was captured. He was put on-camera by his captors (ie; the people we were bombing), and the US (USG & media) response was that “Oh that’s a HORRIBLE breach of international law to use a prisoner that way!”, with virtually nothing said about the fact that his bombs had killed people in that country, which in all likelihood is contrary to international laws. Chomsky and others have catalogued numerous other better examples in their writings, for anyone who cares, which sadly is probably limited to 2 or 3% of the US population.
This argument is as old as this U.S. Nation itself. Although I’m sympathetic to the ban on people effected by our country’s constant warring, it baffles me to why Trump’s framed rhetoric was aimed at Muslims as opposed to his simply banning ‘Adversarial Nationals’ from entering into our ports of call, in the first place. This controversy should not be as alarming as it is being portrayed considering our country’s long past history of Federalist vs Anti-Federalist which is key to our country’s early beginnings. This should be an argument between the Executive power against the Congress. Ah but Congress, where forth are thou?
“The latest example is the June 2009 coup (championed by US Secretary of State Hillary Clinton) ousting the moderately progressive Manuel Zelaya of Honduras. The particularly severe increase in recent years in Honduran migration to the US is a direct result of the overthrow of Zelaya, whose crime was things like raising the minimum wage, giving subsidies to small farmers, and instituting free education. It is a tale told many times in Latin America: The downtrodden masses finally put into power a leader committed to reversing the status quo, determined to try to put an end to two centuries of oppression … and before long the military overthrows the democratically-elected government, while the United States – if not the mastermind behind the coup – does nothing to prevent it or to punish the coup regime…”
https://williamblum.org/aer/read/158
Gregory good for you identifying the source of our problem, but sadly we would rather treat the symptoms of our instigations. Joe
I actually took the time to read Cohn’s links to “international law.” The activity quickly revealed that nothing in them prevents Trump from excluding any person.
Of course, the major problem with some systems of Islam is that they have a strong theocratic political component that is as innimical to the values and practices of the West as communism is.
Religious Islam as practiced by their faithful does have some significant challenges and may benefit from reform. That said, supporters of Political Islam want to overthrow the West. The failure of writers such as Cohn to recognize this as the important problem that it is, undermines a positive perception of her work. She is either incompetent or she is driving someone’s agenda.
This is quite possibly the biggest steaming pile of s*** I have found on the internet all week. This was a very lengthy well-written article about s*** that doesn’t exist there was no violation of international law by the Supreme Court’s decision the Supreme Court decision ruled that it was not based on religion. what the author did in this article was interject their own opinion as to what the Supreme Court should have found. had the Supreme Court said yes we believe it was religious-based but we’re going to allow it then there would have been international law violations however they found it to not the religious-based therefore there are no international law violations
The amicus brief cited in the article was signed by none other than Perkins Coie, the law firm that hired Fusion GPS, who, in turn, hired Christopher Steele (of the infamous Steele dossier), all of whom were paid by the Democratic National Committee in order to usher in Russiagate and facilitate the impeachment of Trump.
“Perkins Coie is counsel of record for the Democratic National Committee, Democratic Leadership Council, the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee. Other political clients include nearly all Democratic members of the United States Congress. It has also represented several presidential campaigns, including those of John Kerry, Barack Obama, and Hillary Clinton. The group’s Political Law practice was for many years headed by Robert Bauer and is now chaired by Marc Elias.”
As I suspected, highly partisan reporting – again!
People are tired of supranational organizations and being held to international agreements that quite often were agreed to under political arm-twisting by vested interests. Good on the Supreme Court!
Thank you Backwards Evolution! Great information; fits into my understanding of this article and its “merits” perfectly. Partisanship rules the day again.
Even an idiot must know that the banned entry list was drawn up by the Saudis and the Israelis. It is their enemies list. The 9/11 Saudi hijackers would waltz into the USA today as easily as they did then. The Supreme Court went rogue with Bush v Gore (if not even earlier) and there is no coming back from such outlawism.
I couldn’t agree more. Anyone trusting the Supreme Court verdicts must have some mental retardation.
How many of Obama’s seven wars were legal under international law? . Neither Syria nor Libya invited the US onto their soil to slaughter their civilians. One would think that Bush’s weapons of mass destruction basis for invading and occupying Iraq would have negated the rationale for War once shown to be a lie. Trump is a jackass, but if “terrorism” is real (?, and if not, where did the $trillions go?), supposedly the basis for killing/ droning hundreds of thousands of Arabs in all these “Muslim nations”, it is only prudent to vet all supposed refugees applying for entry into the US (Obama abolished NSEERS his last month in office, the major vetting/ tracking system for immigrants from those countries he and Bush destroyed). Obama also had virtually identical travel bans, but there was no outrage? Obama’s eight years of slaughter are much worse than banning entry of an unvetted possible terrorist with revenge in mind. Immigration control is the domain of the President, both constitutionally and by law : 8 U.S. Code § 1182 – Inadmissible aliens; (f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Michael: if we were to apply the US constitution honestly in those Obama’s wars, he would be in prison by now. Article I, section 8, clause 11, spells out cristal clearly that only Congress shall declare war. Since any of the wars you referred to were approved by Congress, We could say with 100% of certainty that Obama is a war criminal.
I guess this means Indonesia, Turkey, Pakistan, Egypt etc. where 80% of all Muslims live are not actually true Muslim countries, since they were left off from the list of places with active terrorist cells compiled by the previous government…
The five countries with the highest numbers of Muslims– Indonesia, Pakistan, India, Bangladesh and Egypt– are not on the travel ban.
“Obama signed a law in December 2015, containing provisions that restrict travel to the United States for people who lived in or visited Iran, Iraq, Sudan, or Syria since March 2011. They must have a visa to enter the United States; they can’t use what is known as the Visa Waiver Program, which allows 90-day U.S. visits to other foreign visitors. The law was soon expanded by Obama’s Department of Homeland Security to cover Libya, Somalia, and Yemen. They were identified in the agency’s announcement as “countries of concern,” a phrase used in the law.”
Obviously this is pure partisan politics; it is OK for Obama or Hillary or Bush or Cheney to slaughter Arab Muslims (if approved by Saudi Arabia and Israel), but non-Establishment politicians like Trump cannot.
This would be a good option. But until we get a Supreme Court that respects International Law (and forces the President to adhear to it) this is all just a UTOPIA. If we had respect for International Law we could just let the United Nations decide who could come into are country and what to do about the border with Mexico. I would bet if you let the UN vote on this they would say are border is illegal in the first place (taken by force from Mexico), never mind a wall. It is a human right for people to move to places that offer them the best place to succeed in life as is the death penalty and free health care (but those are another violation and story). This is also being disrespected in places like Poland, Hungry and Austria and now even Italy. Maybe we need to have some kind of Human Right Army based in the UN to get countries to take it seriously? I don’t know… sigh.
Power is where the money is.
People here are fish in a barrel discussing what’s for supper.
Law? What law? There is no law. The US will decide what the law is and who will be bound by it. Under no circumstances will the US be required to obey any rules either established by itself or the ” International community”. Has this writer never heard of the ” Exceptional Nation” ? Rules and norms don`t apply. , The US reserves the right to Invade who it wants. Occupy who it wants. Ignore the boundaries of other countries, US will sail where it wants, Destroy the economies of nations it does not like. Change the governments of nations it does not like. Impose economic restrictions on countries it does not like. Commit genocide. Commit war crimes etc. THERE IS NO LAW. The US is the law, right up and until a stronger, or a combination of stronger nations, take over the mantle of ” Exceptional Nation”. Until then the US is the ” Dalton Gang” the ” Jessie James Gang”, the “Billie the Kid Gang” whatever. Like all of those criminal organizations, there will be no law until this ” Exceptional Nation criminal organization ” is stopped by force.
… as relates to Mr. Trump and his bedside book,
Warnings against False Teachers:
? 1 Timothy 4 ?
1 Now the Spirit speaketh expressly, that in the latter times some shall depart from the faith, giving heed to seducing spirits, and doctrines of devils; 2 Speaking lies in hypocrisy; having their conscience seared with a hot iron;
Mr Trump has NO GOOD intentions, Except for Himself.
Period.
https://www.zerohedge.com/sites/default/files/images/user3303/imageroot/2016/11/09/20161111_trump1.jpg
Somebody here recently mentioned that bed-time storybook. The bedside book referred to would appear to be “My New Order” by Raoul de Roussy de Sales. It contains transcribed political speeches from the early thirties to 1941. At the end of each speech – and they are long and convoluted – there are excerpts from major press releases published by reputable mainstream outlets regarding the contents and significance of what was said. Without the notorious live, in-person theatrics which accompanied them, they are actually rather dry. A couple of pertinent quotes from other, rather obscure sources, shed some light on the philosophy which drove the mass hysteria: “A crowd must be treated like a woman; it responds to flattery”, and “When you go to visit a woman, carry a whip”.
If the names and the dates were changed, and the passages were inserted into a novel by Ayn Rand, no one would notice the plagiarism. [And, I think Ayn may have plagiarized.] None of the journalism of the day questioned the factual accuracy of anything said. Historical analogies and contemporary geopolitical concepts were discussed with fidelity based on the standards of the day. NONE of the pundits quoted questioned the validity or political motives underpinning the orientation [spin?] characterizing these speeches. Nobody ever said. “This is sheer lunacy”, or “This makes no sense”. Most were willing to grant the demagogue his premises, and acknowledge that, from his point of view, it was all perfectly rational.
Today, among various political commentators and the cult-like followers of the “Q” phenomenon, it is not unusual to hear someone utter the words…”political genius”. Let this comment serve as a word to the wise. Tedious as it was, I’ve actually read that book. I know what the hell I’m talking about.
Meh, the argument is a bit of a stretch though I get it. However, it doesn’t matter. The US government no longer recognizes international law and hasn’t for some time. Nor does it recognize the Constitution from my point of view. Everything from the UN Charter, Geneva Conventions on War and on and on have been aggressively violated for decades.
This article grossly misrepresents the effect of the Supremacy clause. See: https://www.asil.org/insights/volume/2/issue/5/international-agreements-and-us-law
Scroll down to the discussion of “self-executing”.
International law has no place inside the United States. Allowing the UN to dictate to us is treason.
Study the Constitution and law before making silly statements.
International law obviously applies to signatories. Treason is war against the US.
When the US signs international treaties they should be bound by them. We are not being “dictated” to under such circumstance. Of course the U.S. acts with impunity because there is no one to enforce the law, inside or outside our own courts. Read Article VI of the U.S. Constitution.
Hello Winston Smith, You are so full of yourself. We have signed international treaties and they are binding on ourselves. Your rabid right wing slip is showing. The UN doesn’t dictate. It reminds me of the Pope’s armies idiotic argument!!!!!!!!! In that case all international agreements should be ripped up as the are not worth the paper that they are printed on! I would like to see the world function after that happens!!!!!!!!!!
Another creative article of Marjorie Cohn — creative of law and facts that do not exist, except in her zealous contempt of Trump.
Then, too, Trump’s travel ban was not a Muslim ban, but a ban of residents of a few nations that Congress declared security risks and a couple other nations found to foster terrorism or other dangers and one nation the population of which includes zero or near-zero Muslims.
The travel ban does not parallel WWII Japanese internment. The Japanese interned were either U.S. citizens or permanent residents. Trump’s travel ban does not apply to U.S. citizens or permanent U.S. residents, but to aliens who are not present in the U.S. or any of its territories; and it does not provide for internment of ANYONE.
Ms. Cohn’s “legal” imagination is regrettable, at least for her.
An Trump? His Presidency is gravely regrettable for many reasons, but not those Ms. Cohn invents.
Correction and addendum:
Correction of first sentence of last paragraph of my main comment: And Trump? (not “An Trump?).
Addendum: For 70 years or longer, the Supreme Court has held, numerous times, that the federal judiciary cannot invalidate a Presidential travel ban or other immigration measure that is “neutral on its face.” The current ruling (Trump v. Hawaii) merely applies that consistent holding; it does not make law to fit Trump’s action.
COMPARE, e.g., the following U.S. Supreme Court decisions AND the other U.S. Supreme Court decisions those decisions reference:
Knauff v. Shaughnessy, 338 U.S. 537 (1950), https://supreme.justia.com/cases/federal/us/338/537/case.html
Shaughnessy v. Mezei, 345 U.S. 206 (1953), https://supreme.justia.com/cases/federal/us/345/206/case.html
Harisiades v. Shaughnessy, 342 U.S. 580 (1952), https://supreme.justia.com/cases/federal/us/342/580/
Landon v. Plasencia, 459 U.S. 21 (1982), https://supreme.justia.com/cases/federal/us/459/21/
Jay v. Boyd, 351 U.S. 345 (1956), https://supreme.justia.com/cases/federal/us/351/345/
INS v. Phinpathya, 464 U.S. 183 (1984), https://supreme.justia.com/cases/federal/us/464/183/
In some cases, a green card holder would be entitled to a due process hearing of whether that person deserved exception. See Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), https://supreme.justia.com/cases/federal/us/344/590/case.html COMPARE Knauff v. Shaughnessy, 338 U.S. 537 (1950), https://supreme.justia.com/cases/federal/us/338/537/case.html AND Shaughnessy v. Mezei, 345 U.S. 206 (1953), https://supreme.justia.com/cases/federal/us/345/206/case.html
But otherwise banning such person does not violate the U.S. constitution or any U.S. statute or any international law. And Trump’s travel ban does NOT apply to any green card holders or permanent residents or those who hold valid visas.
Ms. Cohn cites international law that does not apply. Trump’s travel ban does not discriminate against any person because of religion, race, or national origin. Rather the ban limits entry of residents (plural) of nations found to pose dangers to U.S. security. NO international law prohibits any nation from securing its borders against security threats. And Trump’s travel ban does not apply to many millions of Muslims residing in many nations other than the mere seven nations addressed.
Justice Sotomayor’s opinion was political, not legal. Had he written the majority opinion, even Justice Breyer would not have held that Trump’s travel ban was invalid unless the lower courts found (AS THEY HAD NOT found) that actually the Trump administration was APPLYING the ban in an anti-Muslim-discriminatory way.
Attack Trump for his many ACTUAL evils, like his actions destructive of the environment and his support of Israel’s murderous genocidal treatment of Palestinians and his increasing drone attacks by about 50% more than those Obama wrought. If you attacK trump for his actions that are perfectly lawful, your protests lose force.
Typical view of the obfuscating legal pettifogger.
Anyone can see that the racist travel ban and racist internment are related by racism.
Anyone can see that the travel ban is anti-Muslim hidden as nation-based.
So you uphold the disguise and attack the writer as using imagination.
It is the pettifoggers who create law that does not exist.
Perhaps Trump’s clone in the Supreme Court fear reaction to his gifts to Israel and those to come in the future. American policy in the MEast, the overthrow of the elected Iranian government, the evilness in (with Israeli compliance) arming both the Iranians and Iraqis in their war, the Iraq war, and support of the military overthrow of the elected Egyptian government hasn’t won them many friends except a few tyrants who benefitted. American politicians and legal minds should be ashamed.
Denmark already had a Muslim ban. It was just called something else.
As few Westerners realize, the Danish government has spent the past decade and a half implementing some of the most restrictive immigration policies in the world. Let’s look at several of the policies that have been put in place over time.
Caution toward Muslim refugees
Researchers Edith Montgomery and Anders Foldspang found that during the 1990s, Muslim refugee families who applied for asylum in Denmark as spontaneous asylum seekers — or people seeking asylum from within Danish borders — were eight times less likely to be successful than families that adhered to another religion. This trend has continued, as Michala Clante Bendixen, the head of Refugee Welcome in Denmark, found: In 2015, Denmark rejected Afghans’ and Iraqis’ asylum applications more often than did Germany, Sweden or Norway.
https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/23/denmark-already-has-a-muslim-ban-its-just-called-something-else/?utm_term=.0f079d17c2d5
Every criminal in government needs to be removed from office. As long as they are there, your “freedom” is a joke.
Irrespective of the specifics here, am I the only one trying not to gag when Harold Hongju Koh sets himself up as – and is accepted as – a responsible authority on international law following his time as the Obama administration’s chief explicator of the “legality” of murder by drone throughout the world?
Rather droll, actually, that Koh thinks people in Yemen etc. have the right to enter the U.S. but not the right not to be blown up by the U.S. at home.
Ordinary citizens should not expect protection from laws made by criminals in congress, the White House, and the Supreme Court of Liars. Those laws are made for the wealthy, not the rest of us. HOW FOOLISH IT WOULD BE TO THINK THEY WOULD DO OTHERWISE!
Our government is owned and paid for by the Rich. To think that you can use their fake laws against them is a waste of time and energy. Some day maybe people will truly realize their government is rotten at the core totally. We need a complete replacement – nothing else will do squat.
Yes, unfortunately, that is very true. I have much experience with the corrupt state and federal judiciaries, about 30 – 40 judges in civil rights matters in ME, MA, DC, GA, FL and CA, and every one of them is a tribalist crook. They look at the parties and decide that the winner is the one closest to their tribe, completely ignoring the facts, laws, and Constitution. No exceptions. To wish otherwise is to wish for Santa Claus in the hot season.
Yes Sam, the laws, like everything else in a corrupted society, are perverted t serve the interests of the rich. In this case, supporting the law is like worshiping your own chains.
Notwithstanding the Constitutional Supremacy clause, U.S. federal courts consider treaties as a rule to be not “self-executing”, i.e. arguments based on them won’t prevail in court unless there is additional legislation implementing them domestically.
I’m not defending that position at all, but I think Marjorie Cohn is ignoring the established jurisprudence here. While there were also arguments against the travel ban based on Fifth Amendment non-discrimination principles, I think the decision was consistent with the pre-Trump tradition of the U.S. government – courts included – treating international law like dirt.
But one cannot make a correct legal argument without ignoring “established jurisprudence” because most of it is fake legal argument from the right wing traitors of the federal judiciary.
If treaties are not self-executing then presidents are no more authorized to act on them than Congress, and in any case presidents do not have authority to act without legislative authorization. None of the US genocides are based upon anything more than an unconstitutional AUMF based on a deliberately misconstrued treaty, and most of them do not have even that fake basis.
I perceive some confusion and conflation here.
Yes treaties are the “law of the land” under the USA Constitution, they require “ratification” in the Senate, i.e., “provided two-thirds of the Senators present concur” (Article II, section 2).
Yes the UN Charter was adopted as a treaty by the USA Senate by a vote of 65-7 in 1945.
The Human Rights Declaration was adopted by the UN General Assembly with USA voting in favor, that was in 1948.
The USA never adopted the Human Rights Declaration as a treaty, it has never been the subject of a vote in the Senate, it has never been ratified.
The Human Rights Declaration is NOT a treaty within the meaning of the USA Constitution.
Not just the U.S. – the UDHR is not in itself considered legally binding on any country, in contrast to, e.g., the International Covenant on Civil and Political Rights.
Marjorie Cohn asserts the UDHR has (apparently in its entirety) achieved legal force as part of customary international law. I imagine many would disagree with that position, but I’m not up on the relevant sources.
A tip for the ACLU: If the Supreme Court has ignored treaties of international law despite the Supremacy Clause making them our supreme law alongside the Constitution, then its should must by that argument ignore the NATO treaty and nullify the AUMF as unconstitutional, because the Constitution does not authorize the use of the military except to suppress insurrections and repel invasions. This also nullifies the “American Service-Members’ Protection Act” of 2002 threatening the Hague with military attack if it prosecutes US military or government personnel for war crimes. So we can get our many war criminals in the US prosecuted. Our oligarchy traitors in the Supreme Court will love that argument.
Hello Sam F,
I was thinking about the same regarding our international obligations. We need to totally nullify all international treaties. What a wonderful world that would be. /sarc As for the traitors in the SCROTUM (Supreme Court Repugnants/Rejects Operating Through Underhanded Means) they will only be rewarded and not face the consequences of their selling out to the SCUM OF THE UNIVERSE!!!!!!!
1. Some of the treaties should be renegotiated: NATO and such treaties should be revised to be purely defensive, with penalties for any other use. That would eliminate any constitutionality argument for AUMFs, so the secret wars of presidents would be cause for imprisonment as well as impeachment.
2. Some of the treaties are quite desirable: mutual assistance treaties; and cooperation treaties on copyrights, legal cooperation, law of the seas, etc.
If democracy is ever restored in the US, it must be stabilized by amendments to protect elections and mass media debate from economic power, better checks and balances within the government branches, purging the corrupt judiciary and Congress, monitoring of government officials for corruption, and regulation of business so that oligarchic bullies and scammers do not rise to economic power.
National Security. National Security. National Security. Who will protect us from the police State and the idiot, uncaring citizens who support it?
Hello Arby,
As the total, all encompassing ‘NATIONAL SECURITY!!!!!!!!!! All the ills of the planet can easily be hidden under the rubric NATIONAL SECURITY and many of them have been. Of course there will be many more as those on the right always find anything that is good must be destroyed by, of course, NATIONAL SECURITY if there is no other plausable reason!!!!!!!!! Freedom – sorry NATIONAL SECURITY. Elections – You can have them but the results must come from us due to NATIONAL SECURITY. Travel – YOUR PAPERS PLEASE – NATIONAL SECURITY!!!!!!!!
Casey, You keep blaming those “on the right” for the losses of freedom attained under “national security” edicts, but it was Obama who signed and/or decreed numerous limitations to our civil liberties. One example is his handing over our national elections to DHS to which I think you’re referring in your last sentence.
This comes as no surprise. Yes, transnational actors will be able to win cases in non US courts because while the constitution does make our obligations under the Universal Declaration of Human Rights the supreme law of the land, they’re only supreme if the government complies with them and clearly the courts are unlikely to enforce a foreign decision. Ladies and Gentlemen, I give you yet another example of the rogue nation. Ms Cohen could have had a better heading: Justices ignore US constitution in this decision.
I disagree. The argument that the ban was racist did not prevail, as the judges concluded that the ban did not only muslims nor did it include all muslims, and islam isn’t a race anyway. Regardless our judges swear to uphold the constitution, and make no oaths whatsoever to international political entities.
Race was never an issue here nor was it mentioned in the article. There was no such argument. The matter is unconstitutional discrimination based on religion. And once the US ratifies an international treaty it becomes US domestic law, as the article points out. Thus the court was deciding on US law not “international political entities.”
The ban was clearly based on territory and not religion. Also, the article did mention race–race was one of the two international issues. This “never Trump”: mentality seems to blind many people to otherwise obvious facts. And if, indeed, this was a religious ban (a laughable claim), why were so many Muslim countries left off the list? That argument holds no water; and the fact that 4 of the Supreme Court judges went along with that nonsense speaks volumes.
As a former Bernie supporter, I am becoming more and more impressed with Trump. The irrational, hysterical, shrill and knee-jerk opposition he consistently faces from the left has got me moving to the right…Reminds me of that old saying, most of us will get to heaven not because we are good or moving in that direction, but because we are backing away from hell… Could not have imagined two or three years ago comparing moving to the right with heaven, but indeed I am backing away from the Democrats as fast as possible!
So true!