Tuesday, June 26, 2018

Breaking News: Supreme Court Upholds Third Iteration of the Travel Ban

Supreme court

In a 5-4 decision, the Supreme Court, in an opinion by Chief Justice Roberts, upheld the travel ban.  The Court found that "The Proclamation is squarely within the scope of Presidential authority under the" Immigration and Nationality Act.

The Chief's opinion was joined by Justices Kennedy, Thomas, Alito, and Gorsuch.  Justices Kennedy and Thomas filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.

The decision no doubt will be declared a victory by the Trump administration and criticized by opponents of the travel ban.  Stay tuned for analysis.

UPDATE:  Here is Amy Howe's analysis on SCOTUSBlog.  SCOTUSBlog is running a symposium on the decision.  Here is the contribution of Shoba WadhiaPeter Margulies on Lawfare criticizes the Court's statutory analysis.  His contribution begins as follows:

 "[T]he Supreme Court has upheld President Trump’s travel ban (EO-3). The court’s traditional deference to the president on foreign affairs and national security drove the 5-4 decision, in which Chief Justice John Roberts (joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Neil Gorsuch) rejected both statutory and constitutional challenges to Proclamation No. 9645, which followed two executive orders. Both Chief Justice Roberts and Justice Kennedy, concurring in the judgment, offered critics of the ban a bit of a silver lining: The justices sought to nudge the president toward more civil rhetoric and overruled Korematsu v. United States, the infamous decision upholding the conviction of a U.S. citizen who had failed to comply with a military evacuation order amid the internment of Japanese-Americans during World War II. But the majority rejected claims that the proclamation exceeded the scope of congressional delegation under the Immigration and Nationality Act (INA) or violated the Constitution’s Establishment Clause."




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