Outside the Beltway

Supreme Court Upholds Final Version Of Trump’s Muslim Travel Ban

In a ruling that largely relies on the authority granted by Congress to the President to regulate immigration on national security grounds, the Supreme Court has upheld the final version of the Administration's travel ban.

Doug Mataconis · Tuesday, June 26, 2018 · 23 comments

As James Joyner noted in his post this morning, in a 5-4 ruling that comes out largely as it was expected it would, the Supreme Court has upheld the final version of President Trump’s Muslim travel ban, reversing the ruling of a Federal District Court in Hawaii and the Ninth Circuit Court of Appeals:

WASHINGTON — The Supreme Court on Tuesday upheld President Trump’s ban on travel from mostly-Muslim nations, delivering a robust endorsement of Mr. Trump’s power to control the flow of immigration into America at a time of political upheaval about the treatment of migrants at the Mexican border.

In a 5-to-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.

Mr. 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 Mr. Trump is reeling from weeks of controversy over his decision to impose “zero tolerance” at America’s southern border, leading to politically searing images of children being separated from their parents as families cross into the United States without proper documentation.

(…)

Writing for the majority, Chief Justice John G. Roberts Jr. said that Mr. Trump had ample statutory authority to make national security judgments in the realm of immigration. And he rejected a constitutional challenge to Mr. 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.”

(…)

Chief Justice Roberts acknowledged that Mr. 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 during World War II.

But Chief Justice 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,” Chief Justice Roberts wrote.

The Court’s ruling today deals with the revised indefinite travel ban that the Trump Administration issued at the end of September and which was intended to be the final version of the ban that was first issued in late January 2017. That order, of course, was blocked by a Federal District Court Judge in Washington state as well as the Ninth Circuit Court of Appeals. After those orders, the Administration issued a revised ban that purported to address the problems pointed out in the initial order. That order purported to make changes to the bill that had doomed the initial draft but was itself struck down both by Federal Judges across the nation and by the Fourth and Ninth Circuit Courts of Appeal. Last June, the Supreme Court issued a ruling regarding the Trump Administration’s Executive Order that banned travel from six predominantly Muslim nations that upheld the ban in some respects but also ruled that it could not be applied to all immigrants from these nations. Specifically, the Court ruled that exceptions must be made for people with valid visas, and those with bona fide family or business connections to the United States, although it didn’t specify what it meant by that.

Under this new version of the order, travel to the United States was restricted for virtually everyone from Iran, Libya, Syria, Yemen, Somalia, and Chad, all six of which are majority Muslim nations. Additionally, the order banned travel to the United States by anyone from North Korea and by certain individuals linked to the government of Venezuela. The only exceptions to the ban are people who already had visas, who are citizens or Permanent Residents of the United States, or who have certain bona fide connections to people already in the United States legally. The most notable changes from the previous order is the fact that it added Chad to the list of banned nations notwithstanding the fact that this nation has not been a significant source of terrorism and the fact that the Chadian government has been cooperative with the United States in the fight against Boko Haram and other terror groups in Africa. The other additions to the list, North Korea, and Venezuela, meanwhile, clearly seem to be a deliberate diversion given the fact that there is essentially no immigration of any kind from North Korea into the United States and the limits on travel from Venezuela only apply to a handful of people. This led challengers to argue that the real purpose behind the ban was to ban travel to the United States by people from nations that are majority Muslim, an argument they said was backed up by the President’s rhetoric on the campaign trail and since taking office. This ruling was, of course, immediately challenged and, just before it was scheduled to go into effect, blocked by Federal Judges in Hawaii and Maryland. The Hawaii ruling was later upheld by the Ninth Circuit Court of Appeals. Today’s ruling overturns all of those rulings and returns the cases to their respective District Courts for further proceedings.

Eugene Volokh and Jonathan Adler both discuss parts of the Court’s ruling at The Volokh Conspiracy, and Amy Howe summarizes the Court’s opinion for SCOTUSBlog:

In his opinion for the majority, Roberts first rejected Hawaii’s argument that the September 2017 order exceeds the president’s authority under federal immigration laws. Section 1182(f) of the Immigration and Nationality Act, Roberts explained, “exudes deference” to the president, giving him “broad discretion to suspend” the entry of noncitizens into the United States. Under this provision, Roberts reasoned, the president can block noncitizens from coming into the United States as long as he determines that allowing them to enter “would be detrimental to the interests of the United States.” And the president has done exactly that here, Roberts emphasized, because the order was the result of a “worldwide, multi-agency review” that concluded that the entry restrictions in the order were necessary, for example, to prevent foreign nationals from coming to the United States from countries that did not share enough information about their citizens to allow U.S. immigration officials to vet them properly. “In short,” Roberts concluded, “the language of §1182(f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority.”

The majority similarly rejected Hawaii’s contention that the September 2017 order violates another provision of federal immigration law, Section 1152(a)(1)(A), which bars discrimination based on nationality in issuing visas. Section 1182(f), Roberts observed, “defines the universe” of noncitizens who can get a visa to come to the United States; Section 1152(a)(1)(A) then prohibits discrimination based on nationality in granting or denying visas to those non-citizens. But Section 1152(a)(1)(A) does not, Roberts stressed, limit the president’s ability to block the entry of nationals of some countries. Indeed, he noted, other presidents have done exactly that: President Ronald Reagan suspended the immigration of Cuban nationals to the United States, while President Jimmy Carter issued an order denying visas to Iranian nationals.

The majority then turned to Hawaii’s argument that the September 2017 order violated the Constitution’s establishment clause, which prohibits favoring one religion over another, because it targets “Muslims for disfavored treatment.” Here the state had pointed to what Roberts characterized as “a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation” – for example, Trump’s campaign statements calling for a “total and complete shutdown of Muslims entering the United States” and a reference by a campaign official, shortly after the inauguration, to a “Muslim ban.” Under the Supreme Court’s cases, Roberts suggested, the justices would normally only look at whether the order is neutral on its face – that is, whether it applies to all religions equally.

As a preliminary matter, it’s important to note that the majority opinion relies in large part on a Federal law that grants the President broad authority to restrict immigration and travel based on national security. That statute, 8 U.S.C. §1182(f) of the U.S. Code: (emphasis added)

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

Based on the highlighted provision of the statute, it seems apparent that the discretion that Congress granted to the President in the name of “national security” is significant and broad and almost entirely beyond question. As a result, it seems apparent that the only basis upon which the rulings below can be sustained is if there is some other defect in the order that would render it illegal or unconstitutional. For the reasons that the Court has stated above, and as summarized in the linked articles, the Court largely rejected those challenges and found that the national security concerns mandated that the ban be upheld.

In addition to the national security arguments that Roberts cited in favor of his opinion for the majority, Chief Justice Roberts also addressed the issue that lower courts had dealt with, namely the extent to which evidence beyond the text of the order could be taken into account in determining the President’s intent in signing the Order. The Chief Justice admitted, for example, that five of the seven countries that the ban applies to have a majority Muslim population. However, he said, “that fact alone….does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” Roberts also noted that three of the majority Muslim nations covered by the order — Chad, Iraq, and Sudan — are no longer covered by the ban and that the order issued last September contains exceptions that would allow persons from the remaining affected nations to travel the United States. Additionally, Robert’s noted, In fact, he emphasized, three Muslim-majority countries covered by the president’s January 2017 order – Iraq, Sudan, and Chad – are no longer covered by the restrictions, and the September 2017 order contains exceptions that nonetheless would allow some nationals from almost all of the countries covered by the order to come to the United States. Additionally, the Chief Justice notes that the final order includes a waiver that allows citizens of the impacted countries to travel to the United States under certain circumstances, such as to obtain urgently needed medical care.

In addition, the Court addressed an issue that had played a prominent role in both the Hawaii and Maryland cases, namely the question of whether or not the ban violated the First Amendment in that it implicated the rights of American citizens to invite visitors from one of the impacted countries to come to the country. The Chief Justice noted, however, that the First Amendment rights of American citizens or residents could be implicated by the ban, but nonetheless rejected those claims:

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case (1889), and in Fong Yue Ting v. United States (1893), held broadly, as the Government describes it, that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government ….” Since that time, the Court’s general reaffirmations of this principle have been legion. The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan (1909)….

Mr. Justice Frankfurter ably articulated this history in Galvan v. Press (1954), a deportation case, and we can do no better. After suggesting that “much could be said for the view” that due process places some limitations on congressional power in this area “were we writing on a clean slate,” he continued:

“But the slate is not clean. As to the extent of the power of Congress under review, there is not merely ‘a page of history’… but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process…. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government….”

Taking all of this together, Roberts concludes that the Government had demonstrated “a sufficient national security justification” for the final version of the Order to survive.

There were two separate dissents filed in the case, one written by Justice Breyer to which Justice Kagan is a co-dissenter, and another written by Justice Sotomayor which is joined by Justice Ruth Bader Ginsburg. In his dissent, Justice Breyer focused largely on the exemption and waiver portions of the order that the majority relied upon in its decision. As he noted in his dissent, if the government is actually applying those exemptions in a fair manner, then the order is likely legitimate. However, Breyer pointed to evidence on the record suggesting that the exemptions were not actually providing any relief from the order. As a result, Breyer suggested that the case should be sent back to the District Court for the purpose of gathering evidence on how the waiver programs are being applied and that the nationwide injunction should remain in effect pending that determination. In her dissent, by contracts, Justice Sotomayor argued that the Court’s decision ”leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.” It does so, she lamented, “by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”

While this ruling will make it difficult for the challengers to move forward, the road ahead is not necessarily impossible. The Court’s ruling today was merely on the validity of the preliminary injunction that was issued by the Hawaii court. In its ruling on remand, the Supreme Court leaves open the possibility that the Court could consider additional evidence not available at the time of trial. This means that it’s possible that consideration of things such as the actual application and impact of the ban, and the potential for further tweeting by the President or statements from the Administration could lead to a different outcome in the District Court that would start the appeals process all over. For the time being, though, today’s ruling means that that the injunction against enforcement of the ban is lifted and the ban will go into effect. What happens next depends on how the ban is enforced and what the Courts do about it with the facts presented to them.

Here’s the opinion:

Trump Et Al v. Hawaii Et Al Opinion by Doug Mataconis on Scribd