Tuesday, June 26, 2018

The US Supreme Court's Travel Ban Decision

Prof. Irene Scharf discusses today's decision on the "travel ban" case. 

Image1Today the Supreme Court ruled in the case of Trump v. Hawaii, commonly referred to as “Travel Ban 3.0.” Chief Justice Roberts, writing for a 5-4 majority, ruled that President Trump’s third and latest iteration of the travel ban does not violate either the Constitution or the Immigration and Nationality Act (INA).

The bottom line is that the ban will be fully enforced starting today. To summarize, Chief Justice Roberts said “the Proclamation is squarely within the scope of Presidential authority under the INA.” He emphasized the fact that 8 USC section 1182(f) is a “comprehensive delegation” that “exudes deference to the President in every clause.” Nor did he find the Proclamation to be inconsistent with the INA. Further, the Chief Justice wrote that the Proclamation did not violate the Establishment Clause of the Constitution, countering the plaintiff’s claims that it was “motivated not by concerns pertaining to national security but by animus towards Islam.“ He asserted that the Court’s role is not to “probe and test the justifications of immigration policies.“ Finally, because he found the proclamation to be “neutral on its face,“ the plaintiff did not demonstrate a “likelihood of success on the merits of their constitutional claim.“ In the end, the preliminary injunction granted by the District Court was reversed, and the case was remanded to that court. While the majority did not express any opinion as to the soundness of the policy, it did overrule the long-standing and deeply disturbing opinion of Korematsu v U.S., a 1944 decision in which the court permitted to stand WWII internment of U.S. citizens of Japanese descent.

Justice Kennedy concurred in the opinion, making a cautionary point in saying that, while there are “statements and actions of Government officials” that “are not subject to judicial scrutiny or intervention[,] [t]hat does not mean those officials are free to disregard the Constitution and the rights he proclaims and protects....” Justice Thomas also concurred in the opinion, adding his thoughts about additional issues with the plaintiff’s claims, especially his point that the President has inherent authority to exclude foreign nationals. He also discouraged the use of nationwide injunctions by the federal courts, questioning their validity both legally and historically.

Justice Breyer wrote the dissenting opinion, joined by Justice Kagan, addressing the establishment clause claim, specifically concerns about the “elaborate system of exemptions and waivers” in the Proclamation. He mentioned evidence from a sworn affidavit, which suggested that “waivers are not being processed in the ordinary way;“ apparently that affidavit claimed that consular officers were not being given discretion to grant waivers. Thus, the justice would have upheld the preliminary injunction while the case was being litigated. Justice Sotomayor wrote a dissenting opinion, joined by Justice Ginsberg, holding that the Proclamation violated the Establishment Clause as it was clearly motivated by an unconstitutional animus. While acknowledging that national security is “an issue of paramount public importance,“ she stated that “none of the features of the Proclamation highlighted by the majority supports the government claim the Proclamation is genuinely and primarily rooted in a legitimate national security interest. What the unrebutted evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the proclamation is to disfavor Islam by banning Muslims from entering the country.” In support, she cited several examples of anti-Muslim statements by the president and his staff before his inauguration as well as after. The effect of this ruling is that the ban will continue to be enforced until the Administration either changes or repeals it, giving the President considerable power over the admission of foreign nationals. On the remand back to the District Court for further litigation, the plaintiff may continue to argue against the statutory and constitutional authority for the ban. Resources concerning the case and the travel ban are varied, including the following:


SCOTUSblog American Civil Liberties Union (ACLU) American Immigration Lawyers’ Association (AILA)



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