The court has ruled 5-4 in favour of the ban which prohibits most people from a number of predominantly Muslim countries entering the US.

By Daniel Herborn


Posted on June 27, 2018

At a lunch to discuss the wall he intends to build on the US-Mexico border, Trump hailed the decision as “a tremendous victory for the American people and for our Constitution.

“We have to be tough and we have to be safe, and we have to be secure.  At a minimum, we have to make sure that we vet people coming into the country — we know who’s coming in, we know where they’re coming from.”

In a statement, Trump described the ruling as “a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians,” and vowed that he would continue to defend the sovereignty of the US.

Trump celebrated the legal victory on Twitter with a capitalised declaration that “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN.”

Proclamation No. 9645

The case concerned Proclamation No. 9645 which Trump had issued in September 2017. It was the third iteration of the contentious proclamation and had been reworked to withstand a constitutional challenge.

The proclamation placed restrictions on foreign nationals from eight countries, being Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen. Chad has since been removed from the list.

Lawful permanent residents of the US were exempt from the proclamation. It was also possible for citizens of the affected countries to gain a waiver to enter the US.

The Proclamation had been challenged in court by the State of Hawaii, the Muslim Association of Hawaii and three individuals who had family members affected by the restrictions. They argued it violated both the Immigration and Nationality Act (INA) and the Establishment Clause of the First Amendment.

The Establishment Clause provides that Congress shall not make any law concerning the establishment of a religion or prohibiting people from freely exercising their religion. The argument here was that the travel ban discriminated against Muslims in that it targeted predominantly Muslim countries.

The challenge to the proclamation had previously succeeded at District Court level, where the court granted a nationwide preliminary injunction barring enforcement of the Proclamation. The proclamation had also been the subject of a legal challenge at United States Court of Appeals for the Ninth Circuit, where the court ruled it contravened the INA and granted a temporary restraint against the government enforcing the proclamation. The Trump administration failed in an attempt to stay the restraining order.

The Supreme Court, however, noted that Trump had ordered the United States Department of Homeland Security (DHS) and other government agencies to undertake a comprehensive evaluation of every country’s compliance with the risk assessment baseline. Further, the court held that the Proclamation was based on the deficiencies of process in individual countries. In light of this, the restriction of aliens who could not be adequately vetted was held to be in the national interest.

Chief Justice John Roberts wrote for the majority and concluded that the President has broad statutory authority to legislate on national security issues. Justice Neil Gorsuch was also part of the majority judgement. Gorsuch had been appointed by Trump following lengthy obfuscations by the Republican party to block Obama’s choice for the Supreme Court vacancy, Judge Merrick Garland. The appointment proved decisive in this case and is part of a broader strategy of the Republican party to stack appellate courts with judges sympathetic to their ideology.

Crucially, Roberts held that the Proclamation was not concerned with religious discrimination. He wrote: “The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”

The court also considered evidence of various tweets and public statements Trump made during his presidential campaign saying he would seek to ban Muslims entering the US. Ultimately, the majority judgement held that such extrinsic evidence could be considered but that the court should uphold a policy as long as it “can reasonably be understood to result from a justification independent of unconstitutional ground,” which it ruled was the case here.

Dissenting judgements and criticism

One of the points of difference between the majority and minority judgements was how the justices treated Korematsu v United States. The majority overturned that case, which had upheld the incarceration of Japanese-Americans during World War II as constitutional, but distinguished it from the present case.

In a strongly worded dissent, Justice Sonia Sotomayor wrote that the travel ban could only be separated from religious discrimination 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.”

Later in her dissent (which was joined by Justice Ruth Bader Ginsburg), Sotomayor wrote: “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

The American Civil Liberties Union (ACLU), Amnesty International and Oxfam were among those to voice their dissatisfaction with the decision.

Democratic senator Bob Menendez also lamented the ruling. “Today is a sad day for American institutions, and for all religious minorities who have ever sought refuge in a land promising freedom,” he wrote in a press release.

“Let’s be clear: The Supreme Court of the United States today upheld a discriminatory policy that does not comport with our American values.”