Court says Trump travel ban can stay
Conservatives, in 5-4 vote, cite president’s statutory authority.
The Supreme Court on Tuesday upheld President Donald Trump’s ban on travel from mostly Muslim nations, delivering a robust endorsement of Trump’s power to control the flow of immigration into the United States at a time of political upheaval about the treatment of migrants at the Mexican border.
In a 5-4 vote, the court’s conservatives said the president’s statutory power over immigration was not undermined by his history of incendiary statements about the dangers he said Muslims pose to Americans.
Trump, who has battled court challenges to the travel ban since the first days of his administration, hailed the decision to uphold his third version of an executive order as a “tremendous victory” and promised to continue using his office to defend the country against terrorism and extremism.
“This ruling is also a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what
it takes to secure our border and our country,” the president said in a statement issued by the White House soon after the ruling.
The vindication came even as Trump is reeling from weeks of controversy over his decision to impose “zero tolerance” at the United States’ southern border, leading to politically searing images of children being separated from their parents as families cross into the United States without proper documentation.
Trump and his advisers have long argued that presidents are given vast authority to reshape the way the United States controls its borders. The president’s attempts to do that began with the travel ban and continues today with his demand for an end to “catch and release” of immigrants in the country illegally.
In remarks during a meeting with lawmakers Tuesday, Trump hailed the court’s ruling and vowed to continue fighting for a wall across the Mexican border.
“We have to be tough and we have to be safe and we have to be secure,” he said, adding that construction of the border wall “stops the drugs. It stops people we don’t want to have.”
Writing for the majority, Chief Justice John Roberts said that Trump had ample statutory authority to make national security judgments in the realm of immigration. And he rejected a constitutional challenge to Trump’s latest executive order on the matter, his third, this one issued as a proclamation in September.
But the court’s liberals decried the decision. In a passionate and searing dissent from the bench, Justice Sonia Sotomayor said the decision was no better than Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans during World War II.
By upholding the travel ban, she said, the court “merely replaces one gravely wrong decision with another.”
Critics of the president’s travel ban also decried the court’s ruling. Sen. Robert Menendez, D-N.J., wrote that “today is a sad day for American institutions, and for all religious minorities who have ever sought refuge in a land promising freedom.”
The Baptist Joint Committee for Religious Liberty said in a statement that “we are deeply disappointed by the Supreme Court’s refusal to repudiate policy rooted in animus against Muslims.”
Roberts acknowledged that Trump had made many statements concerning his desire to impose a “Muslim ban.”
“The issue before us is not whether to denounce the statements,” the chief justice wrote. “It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
“In doing so,” he wrote, “we must consider not only the statements of a particular president, but also the authority of the presidency itself.”
He concluded that the proclamation, viewed in isolation, was neutral and justified by national security concerns. “The proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” he wrote.
Even as it upheld the travel ban, the majority took a momentous step. It overruled Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans.
But Roberts said Tuesday’s decision was very different.
“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority,” he wrote. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
“The entry suspension is an act that is well within executive authority and could have been taken by any other president — the only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation,” Roberts wrote.
Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Neil Gorsuch joined the majority opinion.
Sotomayor lashed out at Trump, quoting anti-Muslim statements that he made as a candidate and, later, as president. She noted that he called for a “total and complete ban” on Muslims entering the United States and tweeted that “we need a travel ban for certain dangerous countries.”
“Let the gravity of those statements sink in,” Sotomayor said. “Most of these words were spoken or written by the current president of the United States.”
She dismissed the majority’s argument that the government made its case that the travel ban is necessary for national security, saying that no matter how much the government tried to “launder” the president’s statements, “all of the evidence points in one direction.”
Sotomayor accused her colleagues in the majority of “unquestioning acceptance” of the president’s national security claims. Justice Ruth Bader Ginsburg joined Sotomayor’s dissent.
In a second, milder dissent, Justice Stephen Breyer, joined by Justice Elena Kagan, questioned whether the administration could be trusted to enforce what he called “the proclamation’s elaborate system of exemptions and waivers.”
In a concurrence, Kennedy emphasized the need for religious tolerance.
“The First Amendment prohibits the establishment of religion and promises the free exercise of religion,” he wrote. “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.”
The court’s decision, a major statement on presidential power, marked the conclusion of a long-running dispute over Trump’s authority to make good on his campaign promises to secure the nation’s borders.
Just a week after he took office, Trump issued his first travel ban, causing chaos at the nation’s airports and starting a cascade of lawsuits and appeals. The first ban, drafted in haste, was promptly blocked by courts around the nation.
A second version, issued two months later, fared little better, although the Supreme Court allowed part of it go into effect last June when it agreed to hear the Trump administration’s appeals from court decisions blocking it. But the Supreme Court dismissed those appeals in October after the second ban expired.
In January, the Supreme Court agreed to hear a challenge to Trump’s third and most considered entry ban, issued as a presidential proclamation in September. It initially restricted travel from eight nations, six of them predominantly Muslim — Iran, Libya, Syria, Yemen, Somalia, Chad, Venezuela and North Korea. Chad was later removed from the list.
The restrictions varied in their details, but, for the most part, citizens of the countries were forbidden from emigrating to the United States and many of them are barred from working, studying or vacationing here. In December, the Supreme Court allowed the ban to go into effect while legal challenges moved forward.
Hawaii, several individuals and a Muslim group challenged the latest ban’s limits on travel from the predominantly Muslim nations; they did not object to the portions concerning North Korea and Venezuela. They said the latest ban, like the earlier ones, was tainted by religious animus and not adequately justified by national security concerns.
The challengers prevailed before a U.S. District Court there and before a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco.
The appeals court ruled that Trump had exceeded the authority Congress had given him over immigration and had violated a part of the immigration laws barring discrimination in the issuance of visas. In a separate decision that was not directly before the justices, the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia, blocked the ban on a different ground, saying it violated the Constitution’s prohibition of religious discrimination.