The Supreme Court Tuesday, handed a major victory to the Trump administration. By a vote of 5-4, the justices rejected a challenge to President Donald Trump’s September 2017 order – often referred to as the “travel ban” – restricting immigration to the United States by citizens of eight countries, most (but not all) of which are predominantly Muslim.
In an opinion by Chief Justice John Roberts, the majority relied on the national security justifications for the ruling, while Justice Sonia Sotomayor, in dissent, lamented that the court had “blindly” endorsed “a discriminatory policy motivated by animosity toward” Muslims.
The order under scrutiny at the court was the most recent of three orders issued by the president since he took office in 2017. The first order, issued on January 27, 2017, imposed a 90-day ban on the entry into the United States of citizens from seven overwhelmingly Muslim countries – Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen – and put a 120-day hold on the admission of refugees, although it contained an exception for refugees who were religious minorities in their home countries.
After the lower federal courts blocked the Trump administration from enforcing the January 2017 order, Trump replaced that order with a new and similar (although not identical) order in March 2017. That order also imposed a 90-day ban on the entry of citizens from six of the seven Muslim-majority countries included in the first order (removing Iraq from the list) and suspended the entry of refugees, this time without any exceptions for religious minorities.
When lower courts barred the federal government from enforcing that order as well, the Trump administration went to the Supreme Court, which agreed in June 2017 to weigh in and allowed the government to implement part of the ban until the court could rule on the dispute. But that case was removed from the justices’ argument calendar in late September, after the March 2017 order expired and Trump issued the current version of the order.
The state of Hawaii returned to court to challenge the September 2017 order, arguing that – just like its predecessors – it violated both federal law and the US Constitution. The Supreme Court allowed the government to implement the September 2017 order while it appealed lower-court rulings in favour of the challengers (a development that made today’s ruling less of a surprise, because the government would have needed five votes to block the lower court’s injunction barring enforcement of the order), and in January of this year, the court announced that it would review the new challenge.
In his opinion for the majority, Roberts first rejected Hawaii’s argument that the September 2017 order exceeds the president’s authority under federal immigration laws. Section 1182(f) of the Immigration and Nationality Act, Roberts explained, “exudes deference” to the president, giving him “broad discretion to suspend” the entry of noncitizens into the United States. Under this provision, Roberts reasoned, the president can block noncitizens from coming into the United States if he determines that allowing them to enter “would be detrimental to the interests of the United States.” And the president has done exactly that here, Roberts emphasised, because the September 2017 order was the result of a “worldwide, multi-agency review” that concluded that the entry restrictions in the order were necessary, for example, to prevent foreign nationals from coming to the United States from countries that did not share enough information about their citizens to allow US immigration officials to vet them properly. “In short,” Roberts concluded, “the language of S1182(f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority.”
The majority similarly rejected Hawaii’s contention that the September 2017 order violates another provision of federal immigration law, Section 1152(a)(1)(A), which bars discrimination based on nationality in issuing visas. Section 1182(f), Roberts observed, “defines the universe” of noncitizens who can get a visa to come to the United States; Section 1152(a)(1)(A) then prohibits discrimination based on nationality in granting or denying visas to those noncitizens. But Section 1152(a)(1)(A) does not, Roberts stressed, limit the president’s ability to block the entry of nationals of some countries. Indeed, he noted, other presidents have done exactly that: President Ronald Reagan suspended the immigration of Cuban nationals to the United States, while President Jimmy Carter issued an order denying visas to Iranian nationals. But Hawaii’s argument, Roberts wrote, would mean that both of those orders would violate the law. “Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war,” Roberts pointed out.
The majority then turned to Hawaii’s argument that the September 2017 order violated the Constitution’s establishment clause, which prohibits favoring one religion over another. Here the state had pointed to statements and tweets by the president and his advisers that, in Hawaii’s view, made clear that the September 2017 order, like the others that preceded it, was intended to target Muslims. As examples, Hawaii cited Trump’s campaign statements calling for a “total and complete shutdown of Muslims entering the United States” and a reference by a campaign official, shortly after the inauguration, to a “Muslim ban.”
Roberts began with what seemed like a subtle rebuke of the president, observing that the president “possesses an extraordinary power to speak to his fellow citizens and on their behalf.” He recounted stories of other presidents speaking out on the need for the United States to protect all religions, from George Washington telling a Hebrew congregation that the government “gives to bigotry no sanction” to Dwight Eisenhower assuring the audience at the opening of an Islamic center that “America would fight with her whole strength for your right to have here your own church.” “Yet it cannot be denied,” Roberts acknowledged, that the federal government and other presidents have “performed unevenly in living up to those inspiring words.” But the question before the Supreme Court, Roberts emphasised, is what role those statements should play in determining the constitutionality of the September 2017 order.
Under the Supreme Court’s cases, Roberts suggested, the justices would normally only look at whether the order is neutral on its face – that is, whether it applies to all religions equally. But even if they look beyond the text of the September 2017 order at other evidence of the president’s intent, Roberts continued, the order still survives because it is directly based on a legitimate purpose: “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Roberts acknowledged that five of the seven countries currently covered by the order have Muslim-majority populations. But “that fact alone,” he suggested, “does not support an inference of religious hostility, given that the policy covers just eight per cent of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.”
Roberts dismissed the state’s contention that the September 2017 order applies too broadly and “does little to serve national security interests,” responding that courts should not substitute their own judgment for that of the executive branch on national-security matters, which he characterised as “delicate,” “complex,” and involving “large elements of prophecy.”
Roberts cited three specific features of the September 2017 order that, in his view, further buttress the government’s claim that the order was intended to serve genuine national-security interests. First, he emphasised, three Muslim-majority countries covered by the president’s January 2017 order – Iraq, Sudan and Chad – are no longer covered by the restrictions, and the September 2017 order contains exceptions that would allow some nationals from almost all of the countries covered by the order to come to the United States. What’s more, Roberts added, the September 2017 order also contains a waiver provision that allows nationals from covered countries to travel to the United States in certain circumstances, such as to obtain urgent medical care. When all of these circumstances are considered together, Roberts concluded, the government has demonstrated “a sufficient national security justification” for the September 2017 order to survive. The district court’s injunction that temporarily blocked the government from enforcing the order is now reversed, and the case will go back to the lower courts, Roberts indicated, “for such further proceedings as may be appropriate.”
Justice Anthony Kennedy filed a concurring opinion in which he made clear that he joined the majority’s opinion “in full” but added a warning to the Trump administration. Although, there are “numerous instances” in which the courts will not review or step in to correct the actions of government officials, he acknowledged, that lack of scrutiny “does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.” If anything, he cautioned, the prospect that an official’s conduct will not be subject to judicial review makes it more important for that official to “adhere to
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