Supreme Court Upholds Presidential Power to Impose Trump’s Travel Ban on Five Muslim Majority Countries

(Photo/Creative Commons/Phil Roeder)

In a 5-4 decision, the Supreme Court upheld the power of President Trump to impose a travel ban on most travel from Iran, Libya, Syria, Yemen, Somalia, and North Korea, as well as a small number of visitors from Venezuela. The five conservative justices all voted to uphold the ban.

The court ruled that the Immigration and Nationality Act (INA) vests the President with “ample power” to suspend the entry into the United States of whole classes of immigrants and visitors.

Although the court said that under the terms of the Immigration and Nationality Act the president has broad powers to refuse entry, it did not rule on whether that power could be exercised based solely on a person’s religion. The court majority wrote:

At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is
not whether to denounce the President’s statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.

The court said that it examined the reasons offered  by the Trump Administration for the travel ban in a very limited way to only test to see if there was some “rational” reason for the ban. To determine whether “the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes.” The court said that while it might consider the president’s extrinsic statements about Muslims, it would decide the case based on whether there was a constitutionally permissible justification for it offered by the executive.

The court said that it would only block the ban if  it was “divorced from any factual context from which [the Court] could discern a relationship to legitimate” governmental ends. In what appears to be a naive conclusion, the court says that the latest version of the Muslim ban “is expressly premised on legitimate purposes and says nothing about religion.” It cites as evidence of this the exceptions to the ban incorporated in the version before the court. It is not clear if President Trump’s original ban, which included the exclusion of returning Lawful Permanent Residents, would have passed muster under this decision.

This decision in Trump v. Hawaii should worry all who value the rights of immigrants. The Supreme Court’s conservative majority has not only allowed the Travel Ban to go into effect, it has also signaled that no matter how racist or xenophobic the president’s statements are before new executive action is taken against immigrants, the court may ignore the heartfelt professions of presidential hatred in favor of following the cool language of the legal documents submitted by Justice Department lawyers.

You can read the full decision here.

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