In travel ban decision, Supreme Court shows judicial deference to presidency

In one of its most significant decisions of the year, the United States Supreme Court today upheld President Trump’s travel ban executive order, ending litigation that has spanned almost the entire Trump presidency and three versions of the executive order itself.

In a 5-to-4 vote along ideological lines, the high court reversed a lower court injunction blocking the order’s implementation, finding that the order both fell within the broad powers delegated to the presidency in immigration and national security matters and did not violate the Constitution’s prohibition on the establishment of a single religion. The travel ban has been widely criticized since it was first implemented, a week after Mr. Trump took office, as being an effort to legally implement his campaign promise of “a total and complete shutdown of Muslims entering the United States.”

In a fiery dissent read from the bench this morning, Justice Sonia Sotomayor accused the majority of hypocrisy in how it defended the Constitution’s religion clauses and equated the court’s decision with its infamous Korematsu decision in 1944 declaring the internment of Japanese-Americans during World War II constitutional – a decision the majority justices Tuesday took the historic step of expressly rejecting in their decision. Another dissent by Justice Stephen Breyer encouraged lower courts to examine how the Trump administration applies the executive order moving forward – in particular the case-by-case exemptions the order allows for – features that could lead to more litigation.

Ultimately, however, amid the maelstrom of litigation and controversial statements made by Trump and members of his administration on the motivations behind the executive order, the Supreme Court elected to defer to the significant authority given to presidents on immigration and national security issues.

“The presidency is an institution that is due certain respect and deference, which the court afforded it,” says Josh Blackman, an associate professor at the South Texas College of Law in Houston.

“The court acknowledged that President Trump and candidate Trump said some pretty awful things about Muslims,” he adds. “But [it] said on balance, the president’s prerogatives in national security are so significant, that the court can’t disregard his justifications for the travel ban.”

Law that ‘exudes deference’

The Trump administration implemented the first version of the travel ban in the first month of his presidency. Even as the legal justifications for the travel ban executive order have been steadily refined with each version – the order just upheld by the high court, in particular, is based on a months-long global review by federal agencies of different countries’ immigrant vetting processes and information sharing – each version has been grounded in a specific section of the Immigration and Nationality Act (INA). The section in question says the president can suspend the entry of any class of immigrants whenever it “would be detrimental to the national interest.”

That section, Chief Justice John Roberts wrote in the majority opinion, “exudes deference to the President in every clause.”

Calling the state of Hawaii’s (the plaintiffs in the case) interpretation of the president’s authority under the INA “cramped,” he added that “no Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort” in the law.

The Trump administration also provided a more detailed reasoning for its executive order than previous administrations have, Chief Justice Roberts added. While President Bill Clinton’s executive order suspending the entry of individuals from Sudan was only one sentence, and President Ronald Reagan’s executive order suspending the entry of immigrants from Cuba was five sentences, the third travel ban executive order, running 12 pages, “thoroughly describes the process, agency evaluations, and recommendations underlying the president’s chosen restrictions.”

The efforts the administration took with its global review was of particular significance, according to Clete Samson, a former prosecutor at the Department of Homeland Security’s special immigration court.

“This comes down to what the data showed, what the efforts the administration undertook to examine the vetting procedures of all countries showed,” he says. “I don’t think it’s really that shocking.”

Muslims in the US, however, said Tuesday’s decision reinforced a message that they weren't “real” Americans.

After the travel ban was implemented, “each day … it felt like I was being sent a message [that] people like me were no longer welcome here,” Mohamad Mashta, a permanent resident of the US and a plaintiff in an earlier travel ban lawsuit, said on a conference call organized by the American Civil Liberties Union.

His Syrian wife was barred from entering the country during the first travel ban. After courts blocked that version, she was able to obtain a visa, but today, he says, “this decision made us feel like we are second-class people.”

Avenues for more litigation?

Roberts noted in the majority opinion three other features of the travel ban that “support the Government’s claim of a legitimate security interest”: the fact that Iraq, Sudan, and Chad (all Muslim-majority countries) had been removed from the order; that the order includes “significant exceptions” for certain categories of foreign nationals; and that the order creates a waiver program through which immigrants can be granted exemptions from the order.

But if any part of the travel ban could still be vulnerable to future litigation, it’s those sections.

“If the administration isn’t careful and it doesn’t honestly apply those waivers and exceptions, then it's going to perhaps lend itself to another challenge down the road,” says Mr. Samson, now an attorney with the Nebraska-based law firm Kutak Rock.

Justice Breyer’s seven-page dissent, joined by Justice Elena Kagan, suggested that could already be the case, and urged lower courts to investigate.

“If the Government is not applying the Proclamation’s exemption and waiver system, the claim that the [order] is a ‘Muslim ban,’ rather than a ‘security-based’ ban, becomes much stronger,” he wrote. “Unfortunately there is evidence … that the Government is not applying the [order] as written.”

He noted that in the order’s first month only two waivers were approved out of 6,555 eligible applications, according to a State Department report, and that only 258 student visas – another exempted class – had been granted to students from banned countries in the first quarter of 2018, “less than a quarter of the volume needed to be on track for 2016 student visa levels.”

Breyer cited a few specific cases as well:

• A Yemeni girl with cerebral palsy was denied a waiver but, after her case was included in an amicus brief presented to the high court as part of the case, was subsequently approved.
• A report from the US Embassy in Djibouti stating that officials were instructed to grant waivers “only in rare cases of imminent danger.”
• A sworn affidavit filed by a consular official in a separate case asserting that he and other consular officials “were not allowed to exercise that discretion” and grant waivers, and that the waiver process is “window dressing.”

“While this is but a piece of the picture, it does not provide grounds for confidence,” Breyer wrote. “The Court’s decision today leaves the District Court free to explore these issues.”

High court hypocrisy?

While Justice Breyer’s dissent addressed possible avenues for future litigation, Justice Sotomayor’s dissent tackled the majority’s arguments head-on.

Joined by Justice Ruth Bader Ginsburg, she began by writing that the Supreme Court had failed with its decision “to safeguard that fundamental principle” of religious neutrality enshrined in the Establishment Clause.

Listing more than a half-dozen examples of outside statements made by Trump or members of his administration, both before and after his election, displaying anti-Muslim bias behind the order, Sotomayor accused the majority of not only using a “highly abridged account” of those outside statements, but of also being hypocritical in how they used those statements to resolve the question of whether the travel ban violated the Establishment Clause.

“The Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant,” she wrote, referring to the justices’ decision three weeks ago that a Colorado court had displayed impermissible religious animus towards a cake-shop owner who had refused to make a wedding cake for a gay couple.

“The court’s tolerance of anti-religious sentiment as the impetus for the travel ban is utterly inconsistent with its ruling in the Masterpiece Cake Shop case,” writes Avidan Y. Cover, director of the Institute for Global Security Law & Policy at Case Western Reserve University School of Law, in an email. “Ignoring the government’s disfavoring of Muslims is hard to square with the First Amendment’s Establishment Clause – it’s an unpardonable sin.”

An important difference can be found in the status of person making those “official expressions of hostility” however, according to Professor Blackman.

“The key factor in that case was that some obscure Colorado bureaucrat showed animus toward religion,” he says. “Here, this is the president of the United States, and this is such an important institution that there’s deference showed to the president that would not be due to a random person in the Colorado government.”

The majority went even further in its favorable treatment of the Trump administration, applying only “rational basis scrutiny” to the Establishment Clause question, the most lenient form of judicial review a court can exercise.

“The court’s opinion reflects a near-slavish deference to the President in the national security-immigration sphere,” writes Mr. Cover. “It’s unclear what limiting principle the court would employ to ever cabin the president’s actions in this sphere. The court has previously held that a state of war is not a blank check for the executive, but in tolerating outright religious bigotry as the basis for the travel ban, the court permits the national security trope to operate as an endless line of credit for the president.”

A historic rejection

Addressing Sotomayor's statement that today’s travel ban decision had “stark parallels” to the high court’s infamous Korematsu decision, Roberts responded directly to the dissent.

Writing that Korematsu “has nothing to do with this case,” he then went on to make the historic pronouncement that the 1944 decision “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.’ ”

For Sotomayor, the Supreme Court’s refusal to encroach on the presidency’s immigration and national security made Korematsu highly relevant to the travel ban decision.

While “this formal repudiation of a shameful precedent is laudable and long overdue,” she wrote, “it does not make the majority’s decision here acceptable or right.”

“By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy,” she added, “the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

“Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments,” she continued.

Staff writer Peter Grier contributed to this report.