The Supreme Court handed the Trump administration a major victory today upholding its travel ban against majority-Muslim countries. The decision was split 5-4, with the Court’s conservative-leaning justices voting to uphold the ban while its liberal-leaning justices voted to strike it down. Justice Kennedy, the Court’s sole swing vote, sided with the conservative view.
The administration was sued by the State of Hawaii, three individuals with foreign relatives who were denied entry into the U.S. because of the ban as well as the Muslim Association of Hawaii.
The ban bars from entry into the U.S. citizens of eight countries: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. Iraq was subsequently dropped from the list while Somalia was subsequently added. Most of the countries have Muslim-majority populations.
The Trump administration claimed the ban was based on national security, but the plaintiffs argued that national security was a red herring and what the President really wanted to do was to prevent Muslims from entering the United States.
They cited the President’s calling for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,” in December 2015 as proof of his true intentions, among other statements. Donald Trump was a candidate for President at that time he made that statement.
Plaintiffs point out that that statement remained on his campaign website until May 2017, well into his administration and believe it is evidence of religious animus.
The Court found that when a President weighs a national security decision, it is not required that he also take into account every possible discrimination claim or court challenge to that decision.
Existing U.S. law (8 U.S. Code 1882) allows the President to ban from entry into the U.S. “any class of aliens” he finds “would be detrimental to the interests of the United States…for such period as he shall deem necessary…or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Chief Justice John Roberts, in the majority opinion, acknowledged the President’s statements, but wrote that the Court must, in essence, take the administration’s word for it that the ban is based on national security and not discrimination toward any one group of people.
“[Plaintiff’s] arguments are grounded on the premise that §1182…not only requires the President to make a finding that entry ‘would be detrimental to the interests of the United States,’ but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable,” he wrote.
“We may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”
“But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification,” Roberts added.
President Trump tweeted his pleasure at the news shortly after it was announced. “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!” he wrote.
The President issued the first version of his travel ban one week after entering office in 2017. Protests erupted at major airports and border crossings all over the country. The ban, although revised several times since then, had been struck down by several courts in that time.
A federal district court in Hawaii entered a nationwide preliminary injunction on the ban in March of 2017, ruling the ban could not go into effect.
Justice Roberts was joined in his opinion by Justices Kennedy, Thomas, Alito and newest member of the Court and President Trump appointee, Justice Neil Gorsuch. Justice Breyer filed a dissenting opinion in which Justice Kagan joined. Justice Sotomayor filed a separate dissent in which Justice Ginsburg joined.
Breyer pointed to the fact that a very small number of waivers for the travel ban were granted by the U.S. State Department as evidence of religious discrimination. Only two waivers were granted (out of 6,555 requests) during the first two months of the ban’s institution.
That number increased to 430 over the next two months, but Breyer says that number, when compared with the number of visas granted before the ban went into effect “accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that…would not seem to pose security threats.”
Justice Sonya Sotomayor also dissented on the belief that the President’s words revealed the ban’s true purpose to be discriminatory animus, and also criticized the ban’s waiver program, saying it is “nothing more than a sham.”
In dissenting she also cited another controversial Supreme Court decision: the one upholding the U.S. government’s internment of Japanese citizens during WWII. She likened today’s court decision to that one, quoting Justice Robert Jackson’s dissent in that case who said that the Court’s decision to uphold the government’s internment would be “a far more subtle blow to liberty than the promulgation of the order itself.”
The majority rejected that comparison.
“The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitution,’” Roberts wrote, also quoting Justice Robert Jackson.
The Departments of Justice and Homeland Security, the agencies responsible for defending the ban in the court system and executing the ban respectively, both praised the ruling.
“Today is a great victory for the safety and security of all Americans….Today’s decision is critical to ensuring the continued authority of President Trump – and all future presidents – to protect the American people. We will continue to take and defend all lawful steps necessary to protect this great nation,” Attorney General Jeff Sessions said in a statement.
“It is the duty of the government to ensure that those seeking to enter our country will not harm the American people. While we have the most generous immigration system in the world, it has repeatedly been exploited by terrorists and other malicious actors who seek to do us harm. President Trump’s executive actions take important steps to protect the American people by allowing for the proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals,” a DHS statement read.
“Today’s ruling confirms the legality of these critically important executive actions, and the Department of Homeland Security will continue to faithfully execute our country’s immigration laws and treat everyone we encounter humanely and with professionalism.”
A State Department spokesperson, in a statement to ITN, said they would keep implementing the ban consistent with its parameters.
“Consistent with the Court’s decision, the Department will continue processing visa applications in accordance with the Presidential Proclamation for subject nationals of the seven affected countries (Iran, Libya, North Korea, Somalia, Syria, Yemen, Venezuela),” the statement read.
Photo by Mark Fischer via Flickr