Travel Ban III: Supreme Court Upholds Trump “Travel Ban”

By Jennifer Hepner

On June 26th, 2018, the United States Supreme Court ruled 5-4 in favor of President Trump’s updated travel ban, prohibiting the entry into the United States of foreign nationals from seven countries, of which five are predominately Muslim. The Court held that Proclamation No. 9645, which restricts the entry of foreign nationals from Libya, Syria, Iran, Somalia, Yemen, North Korea, and Venezuela, does not violate the Immigration and Nationality Act or the Establishment Clause and is in line with the President’s executive authority.

On January 27th, 2017, President Trump signed an executive order that suspended the entry into the United States of foreign nationals from seven countries that “had previously been identified by Congress…as posing heightened terrorism risks.” On March 6th, 2017, Trump replaced EO-1 with EO-2, which similarly restricts the entry of foreign nationals from six of the countries covered by EO-1 and temporarily suspends the U.S. Refugee Admissions Program. (See Declaration 17 updates from summer and fall of 2017 for more details on the trajectory of the President’s executive orders.)

On September 24th, 2017, the President issued Proclamation No. 9645: “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Ito the United States by Terrorists or Other Public-Safety Threats.” The Proclamation seeks to “improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present ‘public safety threats,’” and “placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.” (See Declaration 17 updates from winter and spring of this year for more information regarding the progression of the Proclamation in the United States Supreme Court.)

In delivering the Opinion of the Court, Chief Justice John G. Roberts Jr. asserts that the Proclamation is in line with the Immigration and Nationality Act, referencing §1182 of the INA which states:

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 interest 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.

The Court sees this as qualification of the President’s authority to put forth Proclamation No. 9645. Chief Justice Roberts claims that the President has “undoubtedly fulfilled” the prerequisite that entry of foreign nationals from the covered countries “would be detrimental to the interests of the United States,” as he ordered DHS and other agencies to comprehensively evaluate each country’s compliance with the information and risk assessment baseline. Upon this comprehensive review, President Trump found that it was in the nation’s best interest to restrict the entry of foreign nationals who could not be vetted with adequate information. No Congress would use the language present in §1182 if it did not wish to provide the President with the authority to impose “additional limitations on entry beyond the grounds for exclusion set forth in the INA.”

While Chief Justice Roberts claims that the INA does not require that problems such as the lack of reliable information be addressed on a case-by-case basis, he also highlights that the Proclamation includes “significant exceptions for various categories of foreign nationals” and creates a “waiver program open to all foreign nationals seeking entry as immigrants or nonimmigrants.” Further, the Court acknowledges the President’s many discriminatory remarks regarding Muslim immigration, yet it disregards their relevance on account that the Proclamation “says nothing about religion” and only applies to 8 percent of the world’s Muslim population. Ultimately, Chief Justice Roberts recognizes that it is not the place of the Court to rule on “the soundness of policy,” and that, “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

Justice Anthony Kennedy includes a concurring opinion and emphasizes that “there are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.” Government officials are still obligated to abide by the rights protected in the Constitution, yet certain actions are beyond the spheres on which the Judiciary can scrutinize. Justice Kennedy emphasizes that the First Amendment “prohibits the establishment of religion promises the free exercise of religion” and he urges that the Government adhere to this promise and protection of its people’s liberties, even in the sphere of foreign affairs.

In his concurring statement, Justice Clarence Thomas adds that “the President has inherent authority to exclude aliens from the country.”

In his dissent, Justice Stephen G. Breyer targets the lack of accountability of the application of waivers and exemptions as purported by the Proclamation. He highlights evidence that “the Government is not applying the Proclamation as written,” as it neglects to provide waivers and exemptions to many who qualify. Breyer cites examples of some of the thousands of individuals who sought and were denied entry under the Proclamation even though they seemed to meet the waiver criteria. He emphasizes that the Government’s neglect in applying the Proclamation’s exemption and waiver system strengthens the claim that the Proclamation is a “Muslim ban” rather than a “security-based” ban. Justice Breyer recommends that this case be sent back to the District Court for further proceedings and that the injunction remain in effect while the matter is litigated.

In her dissent, Justice Sonia Sotomayor states that Proclamation No. 9645 explicitly violates the Establishment Clause’s guarantee of religious neutrality. Justice Sotomayor claims that the majority “utterly fails to address” President Trump’s discriminatory statements, and so she provides a detailed account of many anti-Muslim remarks made by the President before and during his time in office. Justice Sotomayor acknowledges the majority’s point that the issue at hand is not for the Court to denounce Trump’s offensive statements, but still she claims that his words allow one to conclude that “the primary purpose of the Proclamation is to disfavor Islam and its adherents by excluding them from the country.”

Justice Sotomayor also highlights the “stark parallels between the reasoning of this case and that of Korematsu v. United States.” She claims that in both cases, the Government “invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion,” as well as that both exclusion orders were rooted in “dangerous stereotypes about…a particular group’s supposed inability to assimilate and desire to harm the United States.” Although the Court has finally overruled the decision in Korematsu, Sotomayor emphasizes that the Court “redeploys the same dangerous logic” and “merely replaces one gravely wrong decision with another.”

Chief Justice Roberts counters Justice Sotomayor’s application of Korematsu by asserting that it has nothing to do with the case at hand. He claims that “it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” Even so, the Court takes this opportunity to formally address that Korematsu was “gravely wrong the day it was decided” and “has no place in law under the Constitution.”