Supreme Court upholds President Trump's travel ban against majority-Muslim countries

Richard Wolf | USA TODAY

Show Caption Hide Caption Supreme Court upholds Trump travel ban on some Muslim countries President Trump has battled with courts across the country since he took office, trying to impose his travel ban. Now the decision is final.

WASHINGTON – A deeply divided Supreme Court upheld President Donald Trump's immigration travel ban against predominantly Muslim countries Tuesday as a legitimate exercise of executive branch authority.

The 5-4 ruling reverses a series of lower court decisions that struck down the ban as illegal or unconstitutional. It hands a major victory to Trump, who initiated the battle to ban travelers a week after assuming office last year. It was a defeat for Hawaii and other states that challenged the action, as well as immigration rights groups.

"SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!" Trump tweeted.

"In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country," the president 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."

The president vowed to ban Muslims during the 2016 presidential campaign and made similar statements on Twitter after his election. The high court said those statements did not constitute evidence of religious discrimination.

Chief Justice John Roberts issued the opinion, supported by the court's other four conservatives — a majority that has held through a dozen 5-4 cases this term. He said the ban's restrictions are limited to countries designated by Congress or prior administrations as posing national security risks. He noted that Trump's latest version followed a worldwide review process by several government agencies.

"The proclamation is squarely within the scope of presidential authority," the chief justice said. Claims of religious bias against Muslims do not hold up, he said, against "a sufficient national security justification."

However, Roberts said, "We express no view on the soundness of the policy." Justice Anthony Kennedy, in a brief concurring opinion, referred obliquely to the potential relevance of Trump's statements about religion.

"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."

The court's four liberal justices dissented, and Justices Stephen Breyer and Sonia Sotomayor read excerpts from the bench, a rare occurrence. Breyer, joined by Justice Elena Kagan, found "evidence of anti-religious bias" that he said was worth a second go-round at the federal district court level.

Sotomayor's dissent was lengthier, and she spoke in court for about 20 minutes. Extensively quoting Trump's words during and after the 2016 campaign, she wrote, "A reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus." She was joined by Justice Ruth Bader Ginsburg.

"What began as a policy explicitly 'calling for a total and complete shutdown of Muslims entering the United States' has since morphed into a 'proclamation' putatively based on national-security concerns," Sotomayor said. "But this new window dressing cannot conceal an unassailable fact: the words of the president and his advisers create the strong perception that the proclamation is contaminated by impermissible discriminatory animus against Islam and its followers."

Seventeen-month journey

The legal battle began immediately after Trump issued his first travel ban in January 2017. That 90-day ban on travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, and a 120-day ban on refugees worldwide, was struck down by federal district and appeals courts the following month.

Trump's second version, issued in March 2017, dropped Iraq from the list of affected nations and exempted visa- and green-card-holders. It fared no better, getting struck down last spring before the Supreme Court ruled a year ago that travelers without close ties to the USA could be barred while vetting procedures were reviewed.

More: Travel ban timeline: 17 months, three versions, two appeals courts, one Supreme Court

After Trump issued his third version in September – subtracting Sudan, adding Chad, North Korea and government officials of Venezuela, setting separate criteria for each country and making it indefinite rather than temporary – federal courts again struck it down. In December, the justices allowed it to go into effect, and in January, they scheduled it for oral argument.

Hanging in the balance were nearly 150 million residents of Iran, Libya, Somalia, Syria and Yemen. Chad, also majority-Muslim, was removed from the list in April. North Korea and Venezuela are not part of the legal battle.

Trump travel ban complicates Syrian boy’s plight The Trump administration’s travel ban on refugees from mostly Muslim countries has left some families separated, even as others are reunited. AP Video by Martha Irvine. (March 26)

In his 39-page opinion, Roberts said the travel ban "is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices." Under the Immigration and Nationality Act, he said, presidents clearly have that authority.

The challenge to the travel ban was based also on a constitutional question – whether Trump's comments on Muslims constituted religious discrimination. On that ground, Roberts said, the ban "says nothing about religion" – and only 8% of the world's Muslim population is affected.

Throughout his opinion, Roberts praised the administration's "comprehensive" review of "every single" country's vetting procedures, which was followed by "extensive" findings and a 12-page proclamation he called "more detailed that any prior order a president has issued" for similar purposes.

The chief justice scolded Justice Sotomayor's dissent for comparing Trump's policy to the internment of Japanese Americans that was upheld by the Supreme Court during World War II. On page 38 of his ruling, Roberts declared that decision overruled.

"The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority," Roberts said. "But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission."

Attorney General Jeff Sessions hailed the court decision as "critical to ensuring the continued authority of President Trump — and all future presidents — to protect the American people."

In a concurring opinion, Justice Clarence Thomas went further than Roberts and said the court should consider declaring that district courts cannot block actions such as the travel ban on a nationwide basis. Sessions asked the high court to strike down such a nationwide injunction against the administration's effort to withhold funds from "sanctuary cities" that oppose federal immigration policies.

Liberals claim double standard

In a 28-page opinion, Sotomayor blamed the court for leaving in place a policy that "masquerades behind a facade of national-security concerns" and inflicts "pain and suffering ... upon countless families and individuals, many of whom are United States citizens."

She noted that the court ruled this month in favor of a Colorado baker who refused to serve a same-sex wedding because government officials were hostile to his religious objections.

"In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom," Sotomayor said.

Neal Katyal, the former U.S. acting solicitor general who argued the case against the travel ban, said the demise of the first two versions in lower courts "forced a recalcitrant administration to at least give its order the veil of constitutionality."

"The final chapter has not yet been written, and the president would be mistaken to interpret today’s decision as a green light to continue his unwise and un-American policies," Katyal said. "The travel ban is atrocious policy and makes us less safe and undermines our American ideals. Now that the court has upheld it, it is up to Congress to do its job and reverse President Trump’s unilateral and unwise travel ban."

Lower courts overruled

The case reached the Supreme Court from two liberal federal appeals courts – the 9th, based in San Francisco, and the 4th, based in Richmond, Virginia. Those courts and the district judges below said that courts can and should examine the purpose behind government actions; that Trump's words revealed his purpose to be, at least in part, banning Muslims; that his initial focus on six majority-Muslim nations was a means to that end; and that Trump as president cannot distance himself from Trump as candidate.

Most of the judges who issued rulings on Trump's travel ban said his statements as a candidate, president-elect and president were relevant.

"These statements, taken together, provide direct, specific evidence of what motivated both (executive orders): President Trump’s desire to exclude Muslims from the United States," Chief Judge Roger Gregory wrote for the U.S. Court of Appeals for the 4th Circuit in a 10-3 ruling.

Katyal contended in legal papers that "for over a year, the president campaigned on the pledge, never retracted, that he would ban Muslims from entering the United States."

On the other side, some judges and legal analysts argued that campaign promises should be off-limits, or at least dwarfed by government actions that are not overtly discriminatory.

Judges and legal analysts who defended the travel ban argued that Trump's words cannot form the basis for a constitutional violation. It takes too much interpretation, they said, to read anti-Muslim bias into an executive order or proclamation that, on its surface, is devoid of religious content.

"Opening the door to the use of campaign statements to inform the text of later executive orders has no rational limit," 4th Circuit Judge Paul Niemeyer wrote in a dissent. He mused that such history could extend to "statements from a previous campaign, or from a previous business conference, or from college."

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