In a 5-4 decision, the US Supreme Court has narrowly voted in favour of upholding Donald Trump’s executive order which bans the entry of people from a number of predominately Muslim countries into the United States, amidst claims that such action is beyond the president’s power and discriminatory towards Muslims. The current ban is the third executive order aimed at curtailing the movement of people from some Muslim countries and was implemented in December 2017.
The first order, issued on 27 January 2017, imposed a 90 day ban on the entry into the United States of citizens from 7 Muslim countries – Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen – and put a 120 day hold on the admission of refugees, although it contained an exception for refugees who were religious minorities in their home countries. Having been blocked by the lower federal courts, this was replaced in March 2017 with an order that imposed a similar 90 day ban, however removing Iraq from the list, and suspended the entry of refugees, although without any exceptions for religious minorities.
This order was also struck down, however in June 2017 the Supreme Court permitted part implementation of the ban against those without close links to the US. The March travel ban expired before it could be tested in the Supreme Court, and a third ban was then issued in September 2017 which removed Sudan, and added Chad, North Korea and Venezuelan government officials. The ban stated that these countries were selected, as they "remain deficient at this time with respect to their identity-management and information-sharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory."
At this point, the state of Hawaii, which had previously opposed the ban, returned to court to challenge the September 2017 order, arguing that it violated both federal law and the US Constitution. The Supreme Court allowed the government to implement the September 2017 order while awaiting the appeal.
Chief Justice John Roberts, who delivered the majority opinion, rejected that the President exceeded his authority under federal immigration laws, finding “broad discretion to suspend” the entry of non-citizens into the US under section 1182(f) of the Immigration and Nationality Act. The only prerequisite was to show that entry would be “detrimental to the interests of the US”, and this, the Court believed, had undoubtedly been fulfilled. The purpose of preventing entry of nationals who could not adequately be vetted was deemed legitimate and justified by national security concerns.
While the legislation prohibited discrimination in the issuing of visas, the Court found that this did not prevent the President from blocking the entry of nationals from some countries. Roberts CJ highlighted instances where suspended entry must be allowed such as following an epidemic in a region or where the US is on the brink of war.
Roberts CJ then looked at whether the order on the face of it applied to all religions equally. The Court found that even if it looked beyond the order itself for evidence of the President’s intent, it still survived as it served a legitimate purpose. The Court emphasised the three Muslim-majority countries – Iraq, Sudan and Chad – that were no longer covered by the ban, along with the waiver provisions and carve-outs for non-immigrant permanent residents and asylum seekers as demonstrating genuine security justification.
In a dissenting judgement, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, opined that the decision “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.” She continued, “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, many of whom are United States citizens.”
Click here to read the decision in Trump v Hawaii.