The U.S. Supreme Court ruled 5-4 Tuesday morning to uphold the most recent iteration of President Donald Trump’s ban on immigrants and refugees from Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad, rebuffing challengers’ arguments that the President’s policy was motivated by the racial animus toward Muslims that he repeatedly expressed in campaign speeches and on social media.
Writing for the court’s conservative majority in Trump v. Hawaii, Chief Justice John Roberts said Trump acted well his authority as president to deny a “class of aliens” the right to travel and immigrate to the United States.
The relevant statute, Roberts wrote, “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with ‘ample power’ to impose entry restrictions.”
Citing the arguments made before the Court in April that President Trump’s campaign trail speeches about a “complete and total shutdown of Muslims” and his tweets since taking the oath of office demonstrate that the policy is motivated by racial and religious animus rather than national security concerns, Roberts replied that the policy itself is “neutral on its face” and said “the Government has set forth a sufficient national security justification to survive rational basis review.”
Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Neil Gorsuch joined Roberts’ opinion. Kennedy and Thomas also filed their own concurring opinions. Justices Stephen Breyer and Elena Kagan wrote a dissenting opinion arguing that the government’s discriminatory implementation of the travel ban should render it unconstitutional even if the policy is neutral on paper.
And in their own fiery dissent, Justice Sonia Sotomayor and Justice Ruth Bader Ginsberg said the court is deeply wrong to ignore the anti-Muslim statements from Trump and other administration officials when evaluating the travel ban.
“A reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” they wrote, even if the executive order “masquerades behind a façade of national-security concerns.”
Though the policy before the court was the third and final version of the travel ban —significantly watered down since it was first put into place and subject to a barrage of legal challenges — the dissenting justices said the neutral policies put in place to select countries to go on the ban list did not override Trump’s original intent.
“This repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created,” they write.
The dissenting justices also accused their conservative colleagues of hypocrisy, citing their recent ruling in the case of a Colorado baker who refused service to a gay couple. That case hinged on statements by members of Colorado Civil Rights Commission that showed animus toward the baker’s religious beliefs, which the court said tainted the Commission’s otherwise permissible ruling against the baker.
“Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant,” Sotomayor wrote. “It should find the same here.”
Provocatively, Ginsberg and Sotomayor also compared their colleagues’ travel ban ruling to the Supreme Court’s infamous 1944 decision upholding President Roosevelt’s Japanese-American internment camps. “As here, the Government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion,” they wrote. “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.”
Roberts hit back this accusation in his ruling.
“Korematsu has nothing to do with this case,” he wrote. “It is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
The lawyer who represented the state of Hawaii in challenging the travel ban, Neal Katyal, said in a statement moments after the ruling that while the Supreme Court’s decision is a major blow, the court rulings against the earlier, more obviously discriminatory versions of the travel ban were significant victories that forced the administration to make major revisions.
“At every step the judiciary forced the White House to amend their travel bans to bring them more in line with our Constitution,” Katyal said. “While we continue to believe that this third version fails that test, there is no question that by striking down the first two travel bans, the judiciary forced a recalcitrant administration to at least give its order the veil of constitutionality.”
President Trump’s first travel ban, signed in January 2017 just days after he took office, banned immigrants from seven majority-Muslim countries and suspended the admittance of nearly all refugees. Lawsuits were immediately filed and spontaneous protests erupted at airports around the country.
The next month, in March, before the Supreme Court could weigh in, the administration came out with a second version that dropped Iraq from the ban list but otherwise remained largely the same.
Federal judges in Hawaii and Maryland blocked Travel Ban 2.0 just before it could take effect, and they were upheld by the 9th Circuit Court of Appeals and the 4th Circuit Court of Appeals, respectively. The Trump administration appealed to the Supreme Court, and the justices ruled in June 2017 that the ban could go forward for 90 days, but all immigrants who could prove a “bona fide relationship” with a U.S. person, business or organization were exempt.
When the 90 days was about to expire, last September, the administration rolled out Travel Ban 3.0 — adding North Korea and Venezuela to the ban list and making it indefinite. Again, lower federal courts blocked the ban just as it was about to be implemented. Multiple circuit courts of appeals then weighed in to allow the ban to go forward with an exemption for those with “bona fide relationships.”
But the policy has been fully in place since the Supreme Court ruled in December to allow it go to forward, meaning that Tuesday’s decision upholding the ban will change little on the ground.
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