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Supreme Court Upholds Trump's Travel Ban

In case closely watched by higher education, justices find that Trump was within his authority in restricting entry to the U.S. for nationals from a group of mostly Muslim-majority countries.

June 27, 2018
 

The U.S. Supreme Court upheld President Trump's travel ban in a 5-to-4 decision released Tuesday, finding that the president did not overstep his authority in issuing broad entry restrictions to nationals of a group of mostly Muslim-majority countries and that his statements about excluding Muslims do not taint the ban as unconstitutional.

Writing for the majority in the case Trump v. Hawaii, Chief Justice John G. Roberts found that a key provision of the Immigration and Nationality Act "exudes deference" to the president in entrusting him to "make decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions" -- and that the presidential proclamation outlining the travel restrictions "falls well within this comprehensive delegation."

The Trump administration has said that the restrictions are necessary because the affected countries have inadequate systems in place to share information about terrorist threats with the United States.

The court also ruled that the plaintiffs did not demonstrate a likelihood of success in their argument that the ban violates the Establishment Clause of the Constitution, which prohibits the government from favoring or disfavoring any particular religion.

"Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims," the opinion states. "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. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself."

The court found that the proclamation contains a "sufficient national security justification" to withstand a review under the rational basis standard; under that standard, Chief Justice Roberts wrote, "plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds."

Chief Justice Roberts was joined in the majority by the other four members of the court's conservative wing, Justices Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito and Neil M. Gorsuch. The court's four liberal justices dissented.

"The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment," Justice Sonia Sotomayor wrote in a dissenting opinion in which Justice Ruth Bader Ginsburg joined (the court's other two liberal justices issued a separate dissenting opinion). Justice Sotomayor cited Trump's statement during the presidential campaign calling for a "total and complete shutdown of Muslims entering the United States" in the dissent's preface.

"The Court’s decision today fails to safeguard that fundamental principle. It 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. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created.

"Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise 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," the dissent states.

Justice Sotomayor also wrote of "the stark parallels between the reasoning of this case and that of Korematsu v. United States," a 1944 case in which the Supreme Court upheld an executive order from President Franklin D. Roosevelt authorizing the removal of individuals of Japanese descent to internment camps. "As here, the Government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion … As here, the exclusion was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilate and desire to harm the United States … As here, the Government was unwilling to reveal its own intelligence agencies’ views of the alleged security concerns to the very citizens it purported to protect … And as here, there was strong evidence that impermissible hostility and animus motivated the Government’s policy."

The majority opinion by Chief Justice Roberts objects to the suggestion of any parallel with the Korematsu case. "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. 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.

"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.'"

In upholding the Trump administration's travel ban, the Supreme Court reversed the judgment of the U.S. Court of Appeals for the Ninth Circuit, which ruled in December in Trump v. Hawaii that the president had exceeded his authority in issuing the travel restrictions and that the indefinite suspension of entry for nationals of certain countries conflicts with the Immigration and Nationality Act’s prohibition on nationality-based discrimination. The Ninth Circuit did not take up the arguments about the Establishment Clause.

In a separate case, which was not argued before the Supreme Court, the Court of Appeals for the Fourth Circuit had also ruled against the Trump administration, finding that the travel ban likely violated the Constitution's Establishment Clause.

The Higher Ed Impact

Universities and higher education groups have largely opposed the ban, which has gone through a number of iterations, on the grounds that it is discriminatory and blocks them from bringing talented students and scholars from certain parts of the world to the U.S.

The current restrictions, the details of which vary by country, affect nationals of seven countries, five of which are majority Muslim: Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen (an eighth affected country, Chad, was dropped from the travel ban list in April). The September 2017 presidential proclamation outlining the travel restrictions also recommended increased scrutiny of visa applicants from Iraq.

An analysis published by Inside Higher Ed in early February found that the number of F student visas granted for students from the affected countries had fallen sharply, as had the number of short-term B visas, a category used by foreign scholars when they come to the U.S. for conferences. Beyond the countries that are specifically affected, many in American higher education have raised concerns about the unwelcoming message the blanket visa bans send to international students and scholars from around the world.

Alleged damage to higher education has been a key argument in the legal challenges to the ban. In her dissent, Justice Sotomayor cited difficulties in recruiting and retaining students and faculty members as being one among a number of irreparable harms caused by the travel restrictions: “As the District Court found, plaintiffs have adduced substantial evidence showing that the Proclamation will result in ‘a multitude of harms that are not compensable with monetary damages and that are irreparable -- among them, prolonged separation from family members, constraints to recruiting and retaining students and faculty members to foster diversity and quality within the University community, and the diminished membership of the [Muslim] Association,’” she wrote.

In a separate dissenting opinion, Justice Stephen G. Breyer cited the small numbers of student visas granted to individuals from the affected countries in the first months of 2018 as evidence that the administration does not appear to be adhering to the exemptions and waivers written into the travel ban.

The terms of the current restrictions are such that individuals from all of the affected countries except North Korea and Syria technically remain eligible to get student visas. “In practice, however, only 258 student visas were issued to applicants from Iran (189), Libya (29), Yemen (40), and Somalia (0) in the first three months of 2018,” Justice Breyer wrote, citing Department of State statistics. “This is less than a quarter of the volume needed to be on track for 2016 student visa levels. And only 40 nonimmigrant visas have been issued to Somali nationals, a decrease of 65 percent from 2016.”

Justice Breyer also pointed out that only two waivers were approved out of a total of 6,555 eligible applicants in the first month after the proclamation. The proclamation states that waivers can be granted for a variety of circumstances, including for “significant business or professional obligations,” a category that Breyer specifically noted could include visiting scholars.He cited several amicus briefs, including one filed by the American Council on Education and 32 other higher education groups, that "identify many scholars who would seem to qualify."

“In its reply brief, the Government claims that number [of waivers] increased from 2 to 430 during the first four months of implementation,” Justice Breyer wrote in a dissent joined by Justice Elena Kagan. “That number, 430, however, when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats.”

Higher education groups on Tuesday expressed disappointment about the Supreme Court ruling.

“While we strongly support the government’s efforts to keep our nation secure, we fear this broadly written prohibition will have a long-term impact on our standing as a global leader and hamper our education and research enterprise and the overall U.S. economy,” Ted Mitchell, the president of the American Council on Education, said in a statement. “This decision makes it far more difficult to maintain the United States as the destination of choice for the world’s best students, faculty, and scholars, regardless of their nationality.”

Jill Welch, the deputy executive director for public policy for NAFSA: Association of International Educators, said in a statement that the Supreme Court ruling "tarnishes our reputation and casts doubt in the minds of all students and scholars around the world that the United States is a welcoming nation that fosters religion freedom."

"While universities and colleges work tirelessly to welcome international students and scholars, the chilling effect of this policy and the uncertainty for our international students and scholars will undoubtedly continue the current downturn in U.S. international student enrollment as the world wonders whether America will hold true to our values. Today, the United States can be seen as a country that bans people from our shores, not on the basis of what they have done, but for where they are from," Welch said.

The White House issued a statement from Trump lauding the ruling: "Today’s Supreme Court ruling is a tremendous victory for the American People and the Constitution," Trump said.

"The Supreme Court has upheld the clear authority of the President to defend the national security of the United States. 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."

Tuesday's Supreme Court ruling marks the culmination of a 17-month legal challenge since the implementation of a first ban on entry into the U.S. for nationals of certain countries issued a week after Trump’s inauguration in January 2017. The first 90-day travel ban immediately barred all travel for nationals of seven Muslim-majority countries, causing chaos at the nation’s airports and leaving some students and scholars with valid visas stranded overseas.

The first ban was enjoined by federal courts, as was a second, somewhat altered 90-day ban, although the Supreme Court allowed a modified version of the second ban to go into effect over the summer of 2017. In September, upon the expiration of the second ban, Trump issued the proclamation outlining the third and essentially current version of the ban, which unlike the first two is not time limited and includes indefinite restrictions on entry.

The Supreme Court’s support for the Trump administration in this case did not come as a surprise. The court’s conservative-leaning majority signaled sympathy for the administration’s position in oral arguments in April, and the justices ruled in December by a 7-to-2 majority that the third ban could go into effect pending the resolution of the lawsuits.

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