The Supreme Court on Tuesday upheld President Donald Trump’s travel ban, delivering a major victory to the administration in its quest to restrict the flow of immigrants and visitors into the United States.

In a 5-4 decision, the justices affirmed the president’s vast powers over matters of national security — even as they grappled with Trump’s anti-Muslim statements and the intent behind the controversial policy.


The latest version of the ban levels a range of travel restrictions against five majority-Muslim countries — Iran, Libya, Somalia, Syria and Yemen — as well as North Korea and Venezuela. Chad, another majority-Muslim nation, was removed from the list in April.

Although several federal courts had blocked the ban nationwide, the justices allowed the policy to take full effect in December pending consideration of the merits of the case. The temporary order allowing full implementation was an ominous sign for opponents of the Trump policy, particularly since only two justices — liberals Ruth Bader Ginsburg and Sonia Sotomayor — dissented.

The ruling on Tuesday reverses the lower court decisions and will allow the policy to remain in place indefinitely, although litigation over the ban may continue.

“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,” Chief Justice John Roberts wrote for the majority. “The text says nothing about religion.”

Morning Shift newsletter Get the latest on employment and immigration, every weekday morning — in your inbox. Email Sign Up By signing up you agree to receive email newsletters or alerts from POLITICO. You can unsubscribe at any time. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Roberts said second-guessing the currently stated goals of the policy is beyond the proper realm of the judiciary.

“We cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which ‘are delicate, complex, and involve large elements of prophecy,’” he wrote.

The court’s majority ultimately held that Trump’s anti-Muslim statements were irrelevant as long as the policy had a rational purpose apart from the rhetoric.

Suspending entry of foreigners into the U.S. “is well within executive authority,” Roberts argued, adding that the justices “express no view on the soundness of the policy.”

Justice Anthony Kennedy joined the court’s opinion in favor of the ban’s legality, but he also delivered what appeared to be an implicit rebuke of Trump that did not mention the president by name.

“There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention,” Kennedy wrote. “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. … Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”

Trump hailed the legal triumph on Twitter. “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN,” he wrote. “Wow!”

SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow! — Donald J. Trump (@realDonaldTrump) June 26, 2018

In a written statement, the president insisted that the decision will make Americans safer. And he took a dig at those who have besieged his policy for nearly a year and a half.

"Today’s Supreme Court ruling is a tremendous victory for the American People and the Constitution. In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country," Trump said. "This ruling is also a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country.”

Sharp criticism from two of the Supreme Court’s liberal dissenters prompted the court’s conservative majority to take an unusual step in Tuesday’s ruling: formally repudiating Korematsu v. United States, the court’s infamous World War II-era decision ruling upholding the detention of Japanese Americans.

Roberts called it “wholly inapt to liken that morally repugnant order” to Trump’s travel ban, but said its reference in dissenting opinions provided the court the opportunity to clarify its illegality.

“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.

The move came in response to Sotomayor and Ginsburg upbraiding their Republican-appointed colleagues for repeating the mistakes of the widely denounced 1944 decision.

Sotomayor, joined by Ginsburg, wrote in her dissent that the travel ban decision was "all the more troubling” because of parallels with the Korematsu case.

“Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security,” she wrote, “dissenting Justices warned of that decision’s harm to our constitutional fabric.”

She said the rejection of the World War II ruling was “laudable and long overdue,” but added that “it does not make the majority’s decision here acceptable or right.”

Sotomayor’s opinion provided a litany of statements from Trump taking aim at Muslims or refugees as a threat to the U.S. She also noted that Trump hasn’t put much distance between himself and those remarks since he took office.

“Despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam,” she wrote.

“Taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the Government’s asserted national-security justifications,” she wrote.

Sotomayor also seemed to take a whack at Justice Department attorneys for what she views as strained arguments justifying the ban.

“Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint,” she wrote.

The court’s four Democratic appointees split into two camps. Two of those justices often considered more moderate, Stephen Breyer and Elena Kagan, signed onto a dissent that focused on indications that waiver provisions in Trump’s travel ban order might simply be window-dressing. They said Trump’s order might be constitutional if the waiver provisions for those facing hardship were robust.

“If the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a ‘Muslim ban,’ rather than a ‘security-based’ ban, becomes much stronger,” Breyer wrote, joined by Kagan.

Breyer said he’d leave the injunctions against the ban in place, while allowing further litigation on whether the waivers are actually being granted to those who qualify.

Notably, while Breyer and Kagan said they’d block the travel ban on the current record, they did not join Sotomayor and Ginsburg’s claim that the majority’s ruling blessed discrimination similar to that suffered by Japanese-Americans more than seven decades ago.

Congressional Republicans hailed the decision as an affirmation of the president’s power to maintain national security.

We are at war with radical Islam and must act accordingly to protect our nation. — Lindsey Graham (@LindseyGrahamSC) June 26, 2018

“We are at war with radical Islam and must act accordingly to protect our nation,” tweeted Sen. Lindsey Graham (R-S.C.). Another Republican, Sen. Tom Cotton of Arkansas, cheered the court’s decision to affirm the “common-sense, longstanding practice" of regulating entry of foreigners into the U.S.

A reelection committee for Senate Majority Leader Mitch McConnell posted an image of the Kentucky senator with Justice Neil Gorsuch, who ruled with the majority. McConnell pushed a change to Senate procedural rules last year that allowed Republicans to bypass a Democratic blockade and confirm Gorsuch to the court.

Democrats lamented the ruling and said the travel ban continued to be colored by Trump’s anti-Muslim statements.

“Today’s decision undermines the core value of religious tolerance on which America was founded,” said Rep. Keith Ellison (D-Minn.), who is Muslim. “I am deeply disappointed that this ruling gives legitimacy to discrimination and Islamophobia.“

Sen. Chris Coons (D-Del.) said he would soon introduce legislation that makes clear the U.S. will not endorse religious discrimination. “The Supreme Court may have ruled that the President’s travel ban was technically constitutional,” he said, “but that doesn’t mean that it’s right, that it’s justified, or that it reflects America’s values.”

Neal Katyal, who represented the plaintiffs in the case, called the travel ban “atrocious policy” and called on Congress to take action to halt it. “We continue to believe, as do four dissenting justices, that the travel ban is unconstitutional, unprecedented, unnecessary and un-American,” he said in a statement.

Prior to the ruling, court watchers speculated that Kennedy, the court’s frequent swing vote, might struggle to reconcile the objections to anti-religious bias that he stated in his Masterpiece Cakeshop decision earlier this month with a vote for the Trump administration in the travel ban case.

In Masterpiece Cakeshop, Kennedy's majority opinion upheld a baker's religious-based refusal to sell a cake for a gay wedding on the grounds that a state civil rights commission that ruled against the baker showed “hostility” to the baker’s religious beliefs. In the travel ban case, however, Kennedy apparently set aside concerns about anti-religious bias in deference to the executive branch's prerogatives concerning national security.

In her dissent, Sotomayor — who also dissented in the cakeshop decision — seemed to take aim at her colleague for what she viewed as a reversal. Masterpiece "applied the bedrock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action," she wrote. "Those principles should apply equally here."

The new high court decision is a pivotal moment in the protracted legal fight over the travel ban, which critics argue stems from Trump’s discriminatory attitude toward Muslims.

On the campaign trail in December 2015, Trump called for a “total and complete shutdown” of Muslim visitors to the U.S., a reaction to a mass shooting in San Bernardino, California — a vow that legal opponents cited as the impetus for the three successive versions of the travel ban.

In a statement posted to his campaign website days after the terror attack, Trump said Muslims needed to be barred until U.S. officials “can figure out what is going on.”

Throughout the litigation over the travel ban, Trump's tweets about the policy have loomed large. As administration lawyers sought to portray the policy as well within presidential authority and unrelated to Trump's campaign vows, Trump often undermined those arguments.

Last June, he expressed regret about altering the original policy, complaining that his lawyers were pushing a "watered down, politically correct version."

In September, Trump again suggested that he was unsatisfied with his own policy. "The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!" he wrote.

Judges reviewing Trump's policy also seized on his retweeting of anti-Muslim videos from Britain and another message broadcasting an apocryphal story about a U.S. general ordering Muslim radicals shot with bullets dipped in pigs' blood.

Trump wasted little time in office before he signed the first travel ban, which halted visas to people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for a 90-day period and suspended the refugee resettlement program for 120 days. The stated purpose of the policy was to conduct a review of security and vetting from those nations.

During the televised signing of the executive order on a Friday in late January 2017, Trump read a variation on its title, “Protecting the Nation from Foreign Terrorist Entry into the United States,” and added, “We all know what that means.”

Within hours, the policy prompted confusion and distress in airports worldwide — an immediate demonstration of Trump’s disruptive approach to governance and opposition to immigration.

Top administration officials didn’t receive a copy of the order until two hours after the televised signing, according to an inspector general’s report released roughly a year later.

The hasty rollout left U.S. Customs and Border Protection — the agency tasked with implementing the policy — scrambling to figure out which travelers should be denied entry to the U.S. and how to handle green card holders.

Powerful lobbying forces — including major universities, technology companies and tourism-related businesses — mobilized against the ban, and opponents won a series of legal rulings halting the policy. Trump vowed to take the issue directly to the Supreme Court, but the administration eventually opted to rescind the original policy and issue a replacement in March 2017.

The second version of the travel ban dropped Iraq from the list, sparing from further embarrassment a government working closely with U.S. troops to fight ISIS.

In addition, the reworked policy stated that people who already had green cards and visas would not be subject to the 90-day travel pause. The revised order also removed a provision that may have benefited Christian refugees in majority-Muslim nations.

Still, federal judges in Hawaii and Maryland blocked the policy before it could take effect, ruling that the ban amounted to unconstitutional discrimination against Muslims.

The Trump administration failed to persuade federal appeals courts to reverse the decision, eventually elevating the matter to the Supreme Court. In June 2017, the justices issued a short-term compromise ruling that permitted Trump to implement his policy, but exempted would-be immigrants and travelers with "bona fide" U.S. ties.

Meanwhile, the Trump administration proceeded with a security review of the six nations and refugee program.

When the review of the countries concluded in September, the ban morphed into its third and current iteration, a mix of travel restrictions against citizens of eight countries. In an apparent bid to undermine claims that the policy was aimed at Muslims, Trump added to the mix limits on travelers from Venezuela and North Korea. The latest version of the ban includes provisions for people from all affected nations to apply for waivers to enter the U.S., but immigration attorneys have claimed their clients aren’t being approved.

Even as the legal fight over three separate travel bans played out in court, the Trump administration appeared to achieve its goal of reducing the flow of travelers from those countries.

The number of non-immigrant visas issued to people from six majority-Muslim travel ban countries fell sharply over a one-year period that began in March 2017.

A POLITICO analysis found that over the same period, non-immigrant visas to the world’s 50 Muslim-majority countries dropped 19 percent when compared to levels in fiscal year 2016.

The Supreme Court's decision Tuesday failed to resolve a nagging legal issue that cropped up as part of the pitched legal battle over Trump's travel ban: whether individual federal judges have the ability to issue nationwide injunctions that prevent federal authorities from carrying out a policy anywhere in the U.S. and sometimes even overseas.

Such injunctions have become more frequent in recent years, particularly President Barack Obama's second term and since Trump has been in office. Attorney General Jeff Sessions has railed against the practice as judges have wielded such powers to block a wide array of Trump policies, although there's no record of him protesting its use during Obama's presidency.

The majority opinion in the travel ban case said there was no need to resolve the nationwide-injunction issue because the court concluded that no injunction was warranted. However, Justice Clarence Thomas seemed to be itching to take up the question, penning a 10-page concurrence devoted almost entirely to the issue and expressing deep skepticism about judges' power to grant such sweeping relief.

"These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch," Thomas warned. He went on to call such orders "legally and historically dubious," and to say his colleagues are "dutybound" to weigh in on the topic.

While the majority declined to take up the issue, two dissenters said a nationwide injunction was justified and essential in the travel ban case. "The District Court did not abuse its discretion by granting nationwide relief,” Sotomayor wrote, joined by Ginsburg. “Given the nature of the Establishment Clause violation and the unique circumstances of this case, the imposition of a nationwide injunction was 'necessary to provide complete relief to the plaintiffs.’”



CORRECTION: This story has been updated to correct the day the Supreme Court handed down the decision.