Supreme Court Assures Safe Travels for the Travel Ban

COMMENTARY Immigration

Supreme Court Assures Safe Travels for the Travel Ban

Jun 28th, 2018 2 min read
COMMENTARY BY
Elizabeth Slattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

Key Takeaways

The administration proved that it is acting not from a religious bias but from a legitimate desire to keep the nation safe from a still-active terrorist threat.

Congress placed in the executive's hands the responsibility over suspending aliens' entry into the United States.

A majority of the court was unwilling to "substitute (its) own assessment for the Executive's predictive judgments on such matters."

Yes, the Supreme Court upheld President Donald Trump's infamous travel ban, and for a very good reason: because the administration proved to a majority of the justices that it is acting not from a religious bias but from a legitimate desire to keep the nation safe from a still-active terrorist threat.

Critics naturally seized on the fact that the administration's ban bars travel from seven predominately Muslim countries. But many other majority-Muslim countries are not on the list. Moreover, the list includes such non-majority Muslim nations as North Korea and Venezuela.

So why restrict travel from these countries? Because each one had already been singled out by Congress or a previous administration as a state sponsor of terrorism, a terrorist safe haven, or a danger to national security for other reasons.

The state of Hawaii and private parties filed a lawsuit claiming that the travel ban exceeded the president's delegated authority under the Immigration and Naturalization Act, discriminates in issuing visas based on nationality, and singles out Muslims for disfavored treatment in violation of the Establishment Clause.

But this didn't fly. The administration argued that the president has broad authority to suspend entry, as the court previously held in Kleindienst v. Mandel, when he acts pursuant to authority delegated by Congress and his own constitutional authority over foreign affairs.

In an opinion written by Chief Justice John Roberts, the court wrote that the federal immigration law "exudes deference to the President" by "entrust(ing) to the President the decision whether and when to suspend entry," "for how long," and "on what conditions" if it would be "detrimental" to the national interest." Congress placed in the executive's hands the responsibility over suspending aliens' entry into the United States, and the Trump administration undertook a comprehensive assessment to determine which countries pose "public safety threats."

Another sign that the administration's rationale is trustworthy is the fact that the list is not set in stone. Since the first order restricting travel was entered in January 2017, Iraq, Sudan and Chad – Muslim-majority countries – have been removed from the list after improving their cooperation with the U.S. So the administration is committed to actively reviewing the barred countries and risks they pose.

The court also rejected the challengers' argument that the travel ban discriminates on the basis of nationality in violation of the immigration law. The relevant provision of the law clearly applies to the issuance of visas after an alien has been deemed eligible for admission into the United States. The court explained that the challengers' reading of the statute defied both "common sense and historical practice" and would leave the president powerless to suspend entry based on nationality "in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war."

The challengers also charged the ban with violating the Establishment Clause of the First Amendment. They asked the court to "probe the sincerity of the stated justifications for the policy" by looking at statements made by the president and others showing an anti-Muslim bias.

But the court said it was not charged with "whether to denounce the statements." Its job, rather, was to assess the weight those statements hold in reviewing a neutral directive "addressing a matter within the core of executive responsibility." In short, the justices found the proclamation neutral on its face and well within the president's authority.

Unlike domestic Establishment Clause cases "involving religious displays or school prayer," here the challengers sought to override the president's national security determinations. The court concluded, "Any rule of constitutional law that would inhibit the (executive's) flexibility...to respond to changing world conditions should be adopted only with the greatest caution." A majority of the court was unwilling to "substitute (its) own assessment for the Executive's predictive judgments on such matters."

This ruling is a victory for the separation of powers and the security of our nation. We can all sleep a little easier knowing that the Supreme Court refused to supplant the president's lawful authority to stop those who may do us harm from entering our country.

This piece originally appeared in The Sacramento Bee