A closely divided U.S. Supreme Court has ruled in favor of President Donald Trump’s executive proclamation banning travelers from certain largely majority-Muslim countries. “Because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility,” declared the majority opinion of Chief Justice John Roberts in Trump v. Hawaii, “we must accept that independent justification.” This decision reverses a lower court ruling that had blocked the travel ban from going into effect.
At the center of the case is Trump’s September 2017 “Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” At issue before the justices was whether this proclamation represented an invalid exercise of federal immigration power and also whether it violated the First Amendment’s Establishment Clause by heaping official disfavor on a religious minority, particularly when the proclamation is viewed in light of Trump’s long record of making anti-Muslim statements.
Chief Justice John Roberts, joined by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch, ruled in Trump’s favor on both counts.
“By its plain language,” the chief justice wrote, federal immigration law “grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.”
Roberts then had this to say about the Establishment Clause challenge:
Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.
Writing in dissent, Justice Stephen Breyer, joined by Justice Elena Kagan, argued that the Court should not have decided the case until it had the opportunity to hear additional arguments about the real-world implementation of the travel ban, particularly on how its “exemption and waiver” process is actually functioning. “If this Court must decide the question without this further litigation,” Breyer wrote, “I would, on balance, find the evidence of antireligious bias.”
In a separate dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, charged the majority with turning a blind eye to the president’s blatant Establishment Clause violation. The Court “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 facade of national-security concerns,” Sotomayor wrote. “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”
At its heart, this case was about how much deference the federal courts owe to the executive branch when the executive is acting in the name of national security. According to the Court’s 5-4 ruling, the executive is entitled to significant deference in such matters. “The Government has set forth a sufficient national security justification to survive rational basis review,” wrote Chief Justice Roberts. “We express no view on the soundness of the policy.”
The Supreme Court’s opinion in Trump v. Hawaii is available here.
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