Court upholds Trump’s travel ban
Justices give president political win, make major statement on his power
WASHINGTON — The Supreme Court upheld President Donald Trump’s ban on travel from several predominantly Muslim countries, delivering to the president on Tuesday a political victory and an endorsement of his power to control immigration 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 power to secure the country’s borders, delegated by Congress over decades of immigration lawmaking, was not undermined by Trump’s history of incendiary statements about the dangers he said Muslims pose to the United States.
Writing for the majority, Chief Justice John Roberts said Trump had ample statutory authority to make national security judgments in the realm of immigration. And Roberts rejected a constitutional challenge to Trump’s third executive order on the matter, issued in September as a proclamation.
But the court’s liberals denounced 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.
She praised the court
officially overturning Korematsu in its decision Tuesday. But by upholding the travel ban, Sotomayor said, the court “merely replaces one gravely wrong decision with another.”
The decision came even as Trump is facing controversy over his decision to impose “zero tolerance” at the United States’ southwestern border, leading to politically damaging images of children being separated from their parents as families cross into the country without proper documentation.
The court’s travel ban decision provides new political ammunition for the president and members of his party as they prepare to face the voters in the fall. Trump has already made clear his plans to use anti-immigrant messaging as he campaigns for Republicans, much the way he successfully deployed the issue to whip up the base of the party during the 2016 presidential campaign.
‘We have to be tough’
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 the “catch and release” of unauthorized immigrants.
In remarks Tuesday in a meeting with lawmakers, Trump hailed the Supreme Court’s ruling and vowed to continue fighting for a wall across the southern border with Mexico — his favorite physical manifestation of the legal powers that the court says he rightly wields to secure the United States’ borders.
“We have to be tough and we have to be safe and we have to be secure,” he said, adding that construction of the wall “stops the drugs.”
“It stops people we don’t want to have,” the president said.
Trump’s ban on travel had been in place since December, when the court denied a request from challengers to block it. Tuesday’s ruling lifts the legal cloud over the policy.
Roberts acknowledged that Trump had made many statements concerning his desire to impose a “Muslim ban.” He recounted the president’s call for a “total and complete shutdown of Muslims entering the United States,” and he noted that the president has said that “Islam hates us” and has asserted that the United States was “having problems with Muslims coming into the country.”
But the chief justice said the president’s comments must be balanced against the enumerated powers of the president to conduct the national security affairs of the nation.
“The issue before us is not whether to denounce the statements,” he 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.”
The chief justice repeatedly echoed Stephen Miller, Trump’s top immigration adviser, in citing a provision of immigration law that gives presidents the power to “suspend the entry of all aliens or any class of aliens” as they see necessary.
The provision “exudes deference to the president in every clause,” Roberts said.
He concluded that Trump’s proclamation, viewed in isolation, was neutral and justified by 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,” Roberts wrote.
Momentous step
Even as it upheld the travel ban, the court’s majority took a momentous step. It overruled the Korematsu case, officially reversing a wartime ruling that for decades has stood as an emblem of a morally repugnant response to fear.
But Roberts said Tuesday’s decision was much 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 A. Alito Jr. also joined the majority opinion.
Sotomayor lashed out at Trump, quoting many of the anti-Muslim statements that he made as a candidate and, later, as the president. She noted that, on Twitter, he retweeted three antiMuslim videos as president 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 spofor ken or written by the current president of the United States.”
She dismissed the majority’s conclusion that the government succeeded in arguing that the travel ban was necessary for national security. She said that no matter how much the government tried to “launder” Trump’s statements, “all of the evidence points in one direction.”
Court’s inconsistency
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. Sotomayor accused the court of inconsistency, noting that a stray remark from a state commissioner expressing hostility to religion was the basis of a ruling this month in favor of a Christian baker who refused to create a cake for a same-sex wedding.
“Those principles should apply equally here,” she wrote. “In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom.”
In a second, milder dissent, Justice Stephen G. Breyer, joined by Justice Elena Kagan, questioned whether the Trump administration could be trusted to enforce what he called “the proclamation’s elaborate system of exemptions and waivers.”
In a concurrence, Kennedy agreed that Trump should be allowed to carry out the travel ban, but he 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.”