The Supreme Court Upholds Trump's Travel Ban

The 5–4 majority decision was written by Chief Justice John Roberts.

The Supreme Court on Tuesday upheld President Donald Trump's travel ban.

"We express no view on the soundness of the policy," Chief Justice John Roberts wrote for the court's 5–4 conservative majority — while upholding Trump's third attempt at barring entry to those people from countries deemed by the administration to have insufficient vetting procedures to ensure that national security concerns are addressed.

In the decision, Roberts wrote that Trump had authority under the Immigration and Nationality Act to issue the September 2017 proclamation to "suspend entry of aliens into the United States." The court went on to hold that challengers to the ban also were unlikely to succeed in their claim that the proclamation violates the Establishment Clause.

The decision is a victory for the Trump administration, but it only came after multiple court rulings on the two prior iterations of the travel ban significantly altered — or, "watered down," as Trump himself said — the policy. The ruling Tuesday was only on the third version of the ban, a more narrow proclamation that followed a process of review involving the Homeland Security, State, and Justice departments. The administration withdrew the earlier versions of the ban before the Supreme Court was able to hear the merits of the administration’s arguments on those orders.

Justice Sonia Sotomayor harshly criticized the decision — spending more than 15 minutes reading from her dissent on the bench Tuesday. In doing so, she compared the decision to the 1944 Supreme Court decision in Korematsu v. US upholding the internment camps used to detain people of Japanese ancestry during World War II.

The court, however, used the travel ban case to refute — and overturn — that earlier case.

"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,'" Roberts wrote, quoting from Justice Robert Jackson's dissent to the 1944 decision.

For Sotomayor, that was only half of the issue.

"This formal repudiation of a shameful precedent is laud­able and long overdue. But it does not make the majority’s decision here acceptable or right," she wrote, concluding that "the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one 'gravely wrong' decision with another."

She was joined in her dissent by Justice Ruth Bader Ginsburg. (Justice Stephen Breyer wrote his own dissent, joined by Justice Elena Kagan.)

Roberts, in the court's opinion, disclaimed the Korematsu comparison, writing that "it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission."

In addressing the challenge under the INA — an argument that Trump had gone too far under the law — Roberts wrote that the challengers' "request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere."

The law gives the president the ability to bar entry of a "class of aliens," and Roberts wrote that phrasing "comfortably encompasses a group of people linked by nationality."

The court also tossed aside an argument from the challengers that a nondiscrimination provision in the INA limits the president's actions. The provisions, Roberts wrote, "operate in different spheres" — the president's ability to bar entry relates to admissibility, whereas the nondiscrimination provision simply relates to the issuance of visas.

"Had Congress instead intended in [the nondiscrimination provision] to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end," Roberts wrote, ultimately concluding, "The Proclamation is squarely within the scope of Presidential authority under the INA."

Regarding the Establishment Clause challenge — the argument that the ban was motivated by anti-Muslim animus — the court detailed some of the statements and tweets from Trump and his advisers that challengers pointed to as reasons for finding an anti-Muslim bias behind the ban.

Roberts wrote that the issue before the court "is not whether to denounce the statement," but instead, "the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility" — specifically "a national security directive regulating the entry of aliens abroad."

To that, he said, the court "must consider not only the statements of a particular President, but also the authority of the Presidency itself."

The court "assume[d]" that it could look beyond the text of the policy 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 found "persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility," Roberts wrote, concluding that "the Government has set forth a sufficient national security justification to survive rational basis review."

Trump was unsurprisingly happy about the decision, reacting with a "Wow!" to the news on Twitter.


In dissenting, both Breyer and Sotomayor noted that another case from the term was worth looking at for its application to the travel ban case regarding the Establishment Clause claim.

Breyer wrote that if the proclamation "was significantly affected by religious animus against Muslims, it would violate the relevant statute or the First Amendment itself" — citing the Masterpiece Cakeshop v. Colorado Civil Rights Commission decision, in which the court held that commission had shown impermissible "hostility" to the baker's religion, as an example of when the court had made that point clear.

Sotomayor, citing Trump's anti-Muslim campaign statements, wrote that, in office, "he has continued to make remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its follow­ers."

She then pointed to the Masterpiece decision, writing that "the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally signifi­cant. ... It should find the same here."

The majority opinion did not address the Masterpiece discussion directly, although its discussion that the case involved "the authority of the Presidency itself" — as opposed to a state civil rights commission — served as an implied distinction.

For their parts, both Justices Anthony Kennedy and Clarence Thomas joined the majority opinion but wrote separately to highlight a particular issue that the case raised for them.

Kennedy — in a brief, two-page concurrence — noted that "in some instances, governmental action may be subject to judicial review to determine whether or not it is inexplicable by anything but animus." He added, though, that even when "the statements and actions of Government officials are not subject to judicial scrutiny or intervention[,] ... [t]hat does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects."

As to the presidency, he added, pointedly, "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."

For his part, Thomas wrote on a topic of conservative note over the past year: nationwide injunctions.

"I am skeptical that district courts have the authority to enter universal injunctions," he wrote, stating that they "did not emerge until a century and a half after the founding" and, in his view, "appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts."

The history of the travel ban began in December 2015, when Trump, as a candidate, called for "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." At points throughout the campaign, he changed his language — but he continued to press for some version of his promise.

At the end of his first week in office, Trump signed the travel ban executive order — barring travelers from seven Muslim-majority countries and halting the entire refugee program for a period of time. The executive order — implemented immediately and without notice — led to chaos and protests at airports across the country and court orders halting enforcement of parts and eventually most of the ban.

In March 2017, Trump issued a second order — which he later referred to as a "watered down, politically correct version" of his initial ban. It too faced opposition from the courts, although the Supreme Court allowed it to go into effect in part.

Finally, in September, Trump issued a third, narrower ban — one based, the administration argues, on a full review by federal agencies. After challenges, the Supreme Court allowed this version to go into effect while appeals were heard.

At arguments in April, the court appeared to be of two minds on the debate, with the justices' questions showing clear concerns about weighing into presidential decisions related to national security, but also a willingness to probe at when the possibility of a discriminatory motive for presidential actions would justify barring those decisions from taking effect.

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