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July 31, 2018

Trump travel ban upheld by Supreme Court

The U.S. Supreme Court ruled 5-4 on June 26 that President Trump’s third attempt to ban travel to the United States from six Muslim-majority countries, North Korea and Venezuela is constitutional despite the president’s statements that he intended to institute a ban on Muslims.

The court’s decision in Donald J. Trump, et al., v. Hawaii, 585 U.S. __ (2018), written by Chief Justice John G. Roberts Jr., states that the president lawfully exercised in his proclamation the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. According to the opinion, the law “entrusts to the president the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions” whenever the president finds that entry “would be detrimental to the interests of the United States.”

The court rejected the claims by the state of Hawaii that the primary purpose of the president’s proclamation was religious animus and the president’s stated concerns about vetting protocols and national security were pretexts for discriminating against Muslims.

“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 matters within the core of executive responsibility,” the court said.

In a dissenting opinion, Justice Sonia Sotomayer stated that the majority’s holding in the case “completely sets aside the President’s charged statements about Muslims as irrelevant and erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected.” In addition, she wrote that it “tells members of minority religions in our country that they are outsiders, not full members of the political community.”

The ABA filed an amicus brief opposing the government’s interpretation of §1182(f) that concludes that the section gives the president absolute discretion to exclude any group of persons, for any length of time, and for any reason.  “The record in this case − which consists of public statements by the president and his associates − contains substantial evidence that the proclamation was motivated by a desire to bar Muslims from entering the country,” the amicus brief stated, maintaining that the evidence should not be ignored.                

Back to July 2018 Washington Letter