Professor Andrew Kent wrote a post for the Harvard Law Review blog about the Supreme Court’s recent decision in the travel ban case of Trump v. Hawaii.
Starting during the presidential campaign and continuing into his presidency, Donald Trump gave much reason to fear that he had “animus,” to use the Court’s doctrinal term, towards people of the Muslim religion, and had embodied that animus in the travel ban, the third iteration of which the Court just upheld. Justice Kennedy’s concurrence in Trump v. Hawaii referred to an “anxious world” wondering whether the U.S. government led by President Trump “remains committed always to the liberties the Constitution seeks to preserve and protect.”
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It seems, then, that few doubt that President Trump has espoused religious intolerance inconsistent with constitutional principles. This President’s words and actions caused both the Chief Justice and Justice Kennedy to remind him that he took and is bound by the presidential oath found in Article II of the Constitution—that he must “faithfully execute the office of President of the United States and . . . preserve, protect and defend the Constitution.” As some commentators have noted, it is not clear that this President is capable of living up to that oath. A bad-faith President puts enormous pressure on the other two branches of government.
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One takeaway from the Court’s decision in Trump v. Hawaii is that Congress could and should consider ways to better cabin and channel delegated power. Legislative vetoes are not available, but Congress has many other tools—such as requirements of more specific findings before delegated power can be exercised, sunset provisions to force reconsideration of delegations, active oversight of how delegated authority is used, using the Senate’s appointments check to push for reasonable and competent nominees to lead executive departments and agencies, and withholding funding for problematic uses of delegated authority.