Citing federal immigration law that ‘exudes deference’ to the president and allows him ‘broad discretion to suspend’ the entry of noncitizens into the United States, the Supreme Court upheld President Donald Trump’s much-maligned Muslim travel ban this morning. Several federal courts had blocked multiple versions of the ban from going into effect, citing “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order” that “plainly discriminates based on nationality” in violation of federal law.
But the Supreme Court ruled that the government demonstrated “a sufficient national security justification” for restricting entry from travelers from Syria, Libya, Iran, Yemen, Chad, and Somalia. But the case isn’t quite closed just yet: The Court reversed the injunction issued by the Ninth Circuit that temporarily blocked the government from enforcing the travel ban, and sent the case back to the lower courts “for such further proceedings as may be appropriate.” So, what does that mean and what comes next?
The Ban Is Back
Much had been made of the reasoning behind the travel ban, following a presidential campaign that, according to courts, exhibited “religious intolerance, animus, and discrimination.” When granting the injunction against Trump’s third version of the travel ban, U.S. District Judge Derrick Watson said, “Any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”
But the Supreme Court disagreed, disregarding Trump’s campaign statements calling for a “total and complete shutdown of Muslims entering the United States” and Rudy Giuliani’s admission it was a “Muslim ban,” and said the Court must focus on whether the order is neutral on its face, and the text of the order ostensibly applies to all religions equally. Chief Justice John Roberts, writing for the 5-4 majority, conceded that five of the seven countries covered by the latest iteration of the travel ban have Muslim-majority populations, but asserted “that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.”
The Return of Korematsu?
Comparisons between this case and the Supreme Court’s infamous ruling in Korematsu v. United States have been made, by legal scholars and the Supreme Court itself. That 1944 ruling endorsed internment camps for Japanese-Americans during World War II, and is widely regarded as one of the Court’s worst.
“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 wrote, attempting to disavow Korematsu and distinguish the cases. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
Still, the supposed legal underpinnings of the cases remain consistent: the privilege of the president to set immigration policy, and the deference courts give to that power. The president, Roberts reasoned, can block noncitizens from entering the United States as long as he determines their entry “would be detrimental to the interests of the United States.”
As we mentioned, the Supreme Court merely removed the Ninth Circuit’s injunction against the ban, although with some forceful language that future challengers will need to overcome. But expect those challenges to remain, especially as enforcement of the ban begins.