Justices vote to uphold president’s travel ban
Trump’s power to limit certain Muslims’ entry is bolstered in high court’s 5-4 ruling.
WASHINGTON — The Supreme Court handed President Trump the most significant legal victory of his presidency on Tuesday, upholding the administration’s ban on foreign visitors and immigrants from several mostly Muslim countries.
By a 5-4 vote, the court’s conservative justices bolstered the chief executive’s power to control the borders, just as he is battling a growing crisis over the separation of families crossing illegally along the border with Mexico.
The majority rejected arguments that Trump overstepped his presidential authority and that his targeting of Muslim-majority countries violated the Constitution’s ban on religious discrimination.
“For more than a century, this court has recognized the admission and exclusion of foreign nationals” is a matter for the president and Congress, and is “largely immune from judicial control,” Chief Justice John G. Roberts Jr. said for the court. “Foreign nationals seeking admission have no constitutional right to entry.”
The majority dismissed assertions that Trump’s history of negative comments about Muslims — including a call during the 2016 presidential campaign for a Muslim ban — were relevant to the validity of his final travel order.
The current ban covers five Muslim-majority nations — Iran, Libya, Somalia, Syria and Yemen — as well as North Korea and some government officials from Venezuela. The administration was forced to revise the original order twice to resolve legal problems over due process, implementation and exclusive targeting of Muslim nations.
The ruling is a major victory for Trump and his administration as well as an implicit rebuke to federal judges on the East and West coasts who repeatedly issued nationwide orders to block the travel ban.
Roberts pointed to one broadly worded provision in an immigration law that says the president may “suspend the entry … of any class of aliens” if he believes they “would be detrimental to the interests of the United States.” After a “multiagency review … the president lawfully exercised that discretion,” he said in Trump vs. Hawaii.
Justices Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr. and Neil
M. Gorsuch agreed.
The court’s decision comes as the Trump administration has attempted to impose a “zero tolerance” policy against foreigners who illegally cross the southern border — sparking an international backlash after more than 2,000 children were forcibly separated from their parents, who are being held in immigration jails.
While Tuesday’s ruling does not deal with the arrest or prosecution of border crossers, it will probably be cited by administration lawyers as strengthening Trump’s authority along the borders.
The four liberal dissenters said Trump’s order reflected bias against Muslims. Justices Sonia Sotomayor and Stephen G. Breyer read lengthy dissents in the courtroom Tuesday to express their displeasure.
Sotomayor cited Trump’s campaign pledge to enact “a total and complete shutdown of Muslims entering the United States.”
“Based on the evidence in this record, a reasonable observer would conclude the [travel ban] was motivated by anti-Muslim animus.” She accused the majority of “turning a blind eye to the pain and suffering the [travel ban] inflicts upon countless families and individuals, many of whom are United States citizens.”
“Our Constitution demands, and our county deserves, a judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments,” she said, adding that the majority’s ruling “has failed in that respect.”
Trump praised the ruling as a “tremendous victory for the American people and the Constitution.”
“In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country,” he said. “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.”
Senate Minority Leader Charles E. Schumer (DN.Y.) said that the “president’s travel ban doesn’t make us safer, and the Supreme Court’s ruling doesn’t make it right. This is a backward and un-American policy that fails to improve our national security.”
Senate Majority Leader Mitch McConnell (R-Ky.) tweeted a photo of himself shaking hands with Gorsuch, Trump’s appointee, who joined the majority. He was apparently reminding Republicans that he deserves credit for keeping the court in conservative control by blocking action in 2016 on President Obama’s Supreme Court nominee, Judge Merrick Garland.
Despite the bitter dispute over the travel ban, the decision included one positive note that both sides celebrated: a formal overruling of the 1944 decision in Korematsu vs. United States, which upheld the internment of 120,000 Japanese Americans on the West Coast.
Calling that ruling a “shameful precedent,” Sotomayor said she saw “stark parallels” with the travel ban ruling because both accepted the government’s claim that national security was at stake.
This prompted a sharp retort from Roberts. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” he wrote. “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 the presidential authority. But it is wholly inapt to liken that morally repugnant order” to a policy “denying certain foreign nationals the privilege of admission.”
He added that the reference to Korematsu “affords this court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution,’” quoting a dissent written to the 1944 ruling by former Justice Robert Jackson.
Both Sotomayor and Breyer complained that the majority was applying a looser standard of religious animus than they applied in another recent case.
They pointed out that the conservative justices cited “official expressions of hostility to religion” by a state government agency as the reason to rule this month for a Colorado baker who cited his Christian beliefs in refusing to make a wedding cake for a same-sex couple.
“It should find the same here,” Sotomayor said, citing Trump’s repeated statements criticizing Muslims and Islam.
Roberts noted Trump’s promises to “ban Muslim immigration,” but concluded they did not call for striking down his order.
“The issue before us is not whether to denounce the statements,” Roberts said. “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.”
Thomas, who was photographed with Trump at White House last weekend, went even further in a concurring opinion. “The president has inherent authority to exclude aliens from the country,” he wrote, regardless of what Congress puts in law.
Though he voted with the majority, Kennedy offered a bit of warning to Trump in a concurring opinion.
“There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention,” he wrote. “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. 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.”
The ban and the controversy over it began during Trump’s first week in the White House. A few days after being sworn in, he issued a hastily drafted proclamation that temporarily barred foreign travelers from seven countries.
The surprise move caused chaos at airports around the world and disrupted the plans of thousands of students, business travelers and tourists. In the first of many such rulings, a federal judge in Seattle issued an order putting Trump’s proclamation on hold. Two months later, the White House issued a second, revised travel order.
The 9th Circuit Court of Appeals in California, along with the 4th Circuit in Virginia, upheld the district judges who had blocked Trump’s order. But the Supreme Court ended its term last year by issuing a middle-ground ruling that allowed the second travel ban to take effect, except for foreign visitors who have a close family tie or business affiliation in the U.S.
Trump’s second order expired as planned last fall, and the White House then issued a third and permanent order that barred entry for most visitors and immigrants from Iran, Libya, Chad, Syria, Somalia, Yemen and North Korea, although Chad later was removed from the list. Some Venezuelan officials are also barred.
Trump administration officials were hopeful that the final order resolved most of the legal issues, though Trump complained last year that it had been too “watered down.”
But federal judges in Hawaii and Maryland issued nationwide orders to again block enforcement of Trump’s proclamation, and their decisions were upheld by the 9th and 4th Circuits.
It became clear the Supreme Court was prepared to rule for the administration in December, when the justices issued an order at the behest of administration lawyers that set aside the lower-court rulings and allowed the travel ban to take full effect.