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Katya Sverdlov Blog

Tuesday, July 24, 2018

Notable 2018 Supreme Court Decisions: Travel Ban

Trump v. Hawaii was one of the most divisive decisions of the Supreme Court during the 2017 term. President Trump’s Proclamation No. 9645 called for temporary travel restrictions to the United States for aliens from eight countries (Chad, Iran, Lybia, North Korea, Syria, Venezuela and Yemen). The media called it the “Muslim ban”. But was it? And  did it fall within presidential authority under the Immigration and Nationality Act (INA) and did it violate the Establishment Clause?

The Court issued a five to four split decision, concluding that the Proclamation does not violate Presidential authority or the Establishment Clause, with Chief Justice Roberts writing for the majority. The final version of the Proclamation remained valid.

Under Section 1182(f) of the INA, the President has the authority and “broad discretion” to “suspend the entry of all aliens or any class of aliens” if he finds that their entry “would be detrimental to the interests of the United States.” The Court found that the Proclamation did not exceed statutory powers of the President. It concluded that it was a result of an extensive, worldwide, multi-agency review, involving the State Department and the President’s National Security Team.

Section 1152(a)(1)(a) of the INA bans discrimination in the issuance of immigrant visas based on “person’s race, sex, nationality, place of birth or place of residence”. Here, the Court pointed out the President does have authority to block entry of nationals from some countries, based on security justifications, and other presidents have done so before Trump.

The Establishment Clause prohibits a Proclamation if it explicitly discriminates on the basis of religion. Majority reviewed the 8 countries initially affected by the ban: Chad, Iran, Lybia, North Korea, Syria, Venezuela and Yemen. Of these – Venezuela and North Korea have no Muslim population. The remaining 6 countries all had non-Muslim populations that were equally affected by the ban. Finally, there were plenty of Muslim countries that were not subject to Proclamation’s restrictions. As a result, the Court concluded that government’s contention that Proclamation was based on a “sufficient national security justification” and not an anti-Muslim animus was reasonable.

Justice Sonia Sotomayor filed one of the two dissenting opinions. She concentrated on the Establishment Clause and emphasized President Trump’s 2016 campaign promise of a total shutdown of Muslims entering the United States. However, the majority decision focused on good faith subsequent efforts by various national agencies and the President’s required authority to address on-going national security problems. If a President was blocked from making policy decisions based on a statement that he or she made during Presidential campaigns, he would be severely limited in his actions.


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