By Kevin Daley
A five-justice majority of the U.S. Supreme Court upheld in full the latest iteration of President Donald Trump’s travel sanctions Tuesday.
The ruling was an unqualified victory for the Trump administration, after earlier variants of the entry ban were greeted with raucous airport protests and break-neck litigation that left the White House reeling.
Chief Justice John Roberts wrote the Court’s opinion, joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch.
“The president has lawfully exercised the broad discretion granted to him under [federal law],” Roberts wrote.
Speaking moments after the Court issued its decision, Trump said the ruling vindicates his immigration and national security priorities.
“The Supreme Court has upheld the clear authority of the president to defend the national security of the United States,” he said. “In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country. 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.”
“As long as I am president, I will defend the sovereignty, safety, and security of the American people, and fight for an immigration system that serves the national interests of the United States and its citizens,” he added.
The ban in its currents form was issued in September 2017. The administration assessed travel penalties against eight countries, who failed to satisfy basic vetting and information-sharing expectations.
A coalition of Democratic states and civil rights groups challenged the proclamation, making two basic arguments. They first alleged the sanctions exceeded Trump’s authority under the Immigration and Nationality Act (INA). The INA, the plaintiffs said, only allows the president to ban the entry of a specific class of dangerous aliens for a limited time. It also provides that the president may not discriminate on the basis of race, religion, or nationality when issuing visas.
Second, the challengers claimed that the order was issued to disparage Muslims, in violation of the First Amendment’s ban on religious favoritism in government policy.
The high court rejected both these positions. Roberts explained that the INA “exudes deference to the president in every clause,” meaning that courts should not second-guess Trump’s national security findings.
The law sets just one requirement for the president: he must formally determine that the entry of a certain class of aliens is detrimental to U.S. interests. The majority found the administration easily satisfied this demand, as Trump’s order is the most comprehensive proclamation ever issued under the INA.
“The 12-page proclamation — which thoroughly describes the process, agency evaluations, and recommendations underlying the president’s chosen restrictions — is more detailed than any prior order a president has issued under [the INA],” the chief wrote.
With respect to the constitutional argument, the Court similarly concluded that its review should be limited given the national security sensitivities the case involves.
The ruling also identifies what it sees as significant shortcomings of the plaintiffs’ First Amendment argument. Just eight percent of the world’s Muslim population is encompassed by Trump’s sanctions, Roberts noted, and the proclamation itself creates a waiver program open to all affected aliens. Moreover, certain nationals — like exchange students — from sanctioned countries are specifically exempted from the entry ban.
All told, the majority saw these features as incompatible with a supposed Muslim ban.
In a most surprising section of the ruling, the high court explicitly overturned one of its most notorious precedents, Korematsu v. U.S., a 1944 decision in which a five-justice majority upheld the mass internment of Japanese-Americans during World War II. Sotomayor’s dissent accused the majority of reviving the logic of the Korematsu ruling, prompting Roberts to expressly overrule it.
“The dissent’s reference to Korematsu, however, 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,’” the chief wrote, quoting Justice Robert Jackson’s famous dissent in that case.
But Sotomayor was unimpressed, asserting that the Court “merely replaces one ‘gravely wrong’ decision with another.”
Though Kennedy joined the high court’s majority opinion in full, he wrote separately to chide Trump for disregarding his constitutional oath.
“There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention,” Kennedy wrote. “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”
“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,” he added.
Thomas also wrote a concurring opinion criticizing the issuance of so-called “universal injunctions,” in which a single federal judge can issue an order that binds the entire government. The justice maintained that trial courts do not have jurisdiction to issue such sweeping injunctions, which in his view slow the entire judicial system and make every new policy an urgent matter for courts.
“These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch,” Thomas wrote.
The majority opinion drew two dissents: one from Justice Stephen Breyer, joined by Justice Elena Kagan, and a second from Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg.
Both Breyer and Sotomayor read their opinions from the bench Tuesday, a rarely-exercised prerogative meant to signal strong disagreement with the Court’s decision.
Sotomayor in particular blasted the ruling, citing Trump by name in her bench statement and accusing him of discriminatory animus. Her dissent is replete with citations to the president’s tweets and public statements, which she says create a strong perception of anti-Islamic bias.
The current ban is imposed to varying degrees against nationals from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The African nation of Chad was removed from the list after administration officials found it had taken sufficient steps to comply with baseline security requirements.
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