July 31, 2018 Practice Points

Travel Ban Upheld Despite Trump’s Incendiary Tweets

Will courts continue to apply the rational basis test for the executive’s actions related to immigration even when fundamental constitutional rights are called into question, or was this an isolated application of the more lenient standard?

By Brittany Levine

On June 26, 2018, SCOTUS affirmed President Donald Trump’s travel ban on several predominantly Muslim countries with a 5–4 vote, reversing the Ninth Circuit’s decision striking down the Proclamation. President Trump’s recent appointment, Justice Gorsuch, along with Justices Thomas, Kennedy, Alito, and Chief Justice Roberts voted in favor of the President.  Writing for the majority, Chief Justice John Roberts stated that President Trump did not exceed his statutory authority or violate the Establishments Clause when he issued the September 2017 Proclamation restricting travel to the United States by citizens from Iran, Libya, Somalia, Syria, Yemen, North Korea and Venezuela.

The controversy over the travel ban began when the President issued the first executive order banning travel from several Muslim countries in January 2017 and a second executive order in March 2017. The State of Hawaii brought suit against the President, arguing that he did not have the statutory authority under federal immigration laws to issue the Proclamation. The Court disagreed, ruling that the President has “broad discretion” to suspend the entry of non-citizens into the country under Section 1182(f) of the Immigration and Nationality Act.  Chief Justice Roberts also considered the Establishment Clause claim but found that the Proclamation did not facially favor or disfavor any particular religion. Behind its face, the Court determined that the Proclamation was based on a “sufficient national security” interest rather than anti-Muslim animus. The Chief Justice instructed that deference must be given to the executive branch in subsequent proceedings.

Justice Sotomayor wrote a dissenting opinion, criticizing the majority for completely disregarding the facts and for failing to apply the proper standard of review. In the initial proceedings, Trump’s interview comments and tweets, both on the campaign trail and as the President, were influential for the lower courts in determining that the ban was unconstitutional.  The majority discusses comments made by the President and his advisors that had discriminatory undertones which were identified by the plaintiffs, but these remarks did not appear to be given weight. The Court found that when looking behind the Proclamation’s face, there was a rational basis connected to a legitimate government interest, regardless of any discriminatory comments made by the Trump administration.  Justice Sotomayor’s scornful dissent concluded that the ban is “inexplicable by anything by animus” when construing the President’s comments and behavior, even under the incorrectly applied rational basis test.

This decision validates the President’s power to prevent non-citizens from entering the United States and gives President Trump a permanent win after several setbacks from lower courts.  Even more profound is the majority’s decision to apply the rational basis standard rather than strict scrutiny in a case with religious discrimination at the heart of the controversy and clear animus on behalf of the President as evidenced by his comments.

Now we are left with this question: Will courts continue to apply the rational basis test for the executive’s actions related to immigration even when fundamental constitutional rights are called into question, or was this an isolated application of the more lenient standard?

Brittany Levine is with Austin Law Firm in Raleigh, North Carolina.