On June 26, the United States Supreme Court issued its decision in the closely watched “Travel Ban” case, Trump v. Hawaii. The Court found that the Trump administration was within its authority in issuing Proclamation No. 9645, which suspends the issuance of visas to foreign nationals of seven countries.
The Proclamation at issue was the third iteration of travel bans issued by the Trump Administration, which have been the subject of ongoing litigation since Trump’s first week in office.
For more background on the prior travel bans and a refresher on the details of the current travel ban, see our previous post here: Supreme Court Allows Trump Travel Ban to Take Effect.
The opinion of the Court was delivered by Chief Justice John Roberts. In his opinion, Justice Roberts stated that the Immigration and Nationality Act provides great deference to the President in decisions involving the issuance of visas and the entry of foreign nationals into the United States, and found that the Proclamation falls “well within” the ample power of the President to impose entry restrictions.
The Court found persuasive that the travel ban is “neutral on its face” – in that it does not explicitly seek to discriminate against any particular religious minority – and that it is well-tailored to its stated national security purpose – it “thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions.”
In his opinion, Justice Roberts mostly avoided the question of whether the travel ban is a “Muslim Ban” – as everyone from the President, his supporters, and his harshest critics have characterized it.
The Court’s opinion stated that where the Proclamation itself is facially neutral, it is not necessary to consider the statements made by the President outside the document.
Justice Sotomayor, joined by Justice Ginsburg, passionately rejected the majority’s reasoning in ceding power of the executive branch where there is such clear religious bias behind the administration’s actions.
She wrote that the majority was leaving in place a policy “advertised openly and unequivocally” as intended to ban Muslims from the United State because it “now masquerades behind a façade of national-security concerns.”
She went on to compare the court’s decision to its infamous 1944 decision in Korematsu v. United States, which endorsed the legality of Japanese-American internment camps.
She noted the “stark parallels” between the reasoning in this case and in Korematsu, where the government “invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion.”
Justice Breyer wrote a second, more technical dissent, in which he was joined by Justice Kagan.
In deciding whether the travel ban was based on true national security concerns or actually motivated by religious bias, he wrote that the Proclamation’s “elaborate system of exemptions and waivers can and should help us answer this question.”
Upon review, he found that there was evidence that the waiver provisions, which ostensibly permit foreign nationals of the barred countries to obtain visas on a case-by-case basis, had not actually been implemented as directed and that visas had been provided in only a “miniscule” number of cases.
Given this discrepancy between the Proclamation’s stated goals and its implementation, Justice Breyer found that, on balance, there was evidence of antireligious bias.
Justice Kennedy, often the Court’s swing vote in highly politicized cases, joined the majority’s opinion in full, but wrote a separate, concurring opinion.
The very brief concurrence, just a page long, makes clear that Justice Kennedy’s vote is in favor of the broad power of the office of the Presidency, but not in the current President’s use of that power or his rhetoric in executing it.
In striking language, he directly chided Trump by stating:
“The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise…
“It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
While campaigning for the presidency in December of 2015, Donald Trump stated that he was “calling for a total and complete shutdown of Muslims entering the United States.”
He reiterated such statements throughout his campaign, expressing bias against Muslims and refusing to disavow his call for an explicit Muslim ban.
Although the Government argued that the Proclamation should be considered “as it is written” and not through the lens of the President’s discriminatory statements, the President himself has explicitly described the travel ban as “keeping his campaign promises.”
