On June 26, 2018, the U.S. Supreme Court upheld, by a 5-4 vote,

the Trump administration's third travel ban order under

Presidential Proclamation 9645, issued September 24, 2017. The ban

prevents indefinitely the entry into the United States of certain

nationals from specific countries, with some exceptions.

A Department of Homeland Security (DHS) fact sheet noted that,

among other things, the government:

  • Maintained, modified, or eased restrictions on five of six

    countries designated by Executive Order 13780, issued in March

    2017: Iran, Libya, Syria, Yemen, and Somalia.

  • Lifted restrictions on Sudan.
  • Added restrictions and/or additional vetting on three

    additional countries (Chad, North Korea, and Venezuela) found not

    to meet baseline requirements, but that were not included in

    Executive Order 13780. Effective April 13, 2018, Chad was removed

    from this list.

The Court observed that plaintiffs alleged that the primary

purpose of the entry ban was religious animus and that the

President's stated concerns about vetting protocols and

national security were pretexts for discriminating against Muslims.

At the heart of their case was a series of statements by the

President and his advisers both during the campaign and since the

President assumed office. Chief Justice Roberts, writing for the

majority, said the issue was not whether to denounce the

President's statements, but the significance of those

statements in reviewing a presidential directive, neutral on its

face, addressing a matter within the core of executive

responsibility.  In doing so, he said, the Court must consider

not only the statements of a particular president but also the

authority of the presidency itself.

Justice Roberts noted that the Proclamation “is expressly

premised on legitimate purposes and says nothing about religion.

The entry restrictions on Muslim-majority nations are limited to

countries that were previously designated by Congress or prior

administrations as posing national security risks. Moreover, the

Proclamation reflects the results of a worldwide review process

undertaken by multiple Cabinet officials and their

agencies.”

Three additional features of the entry policy supported the

government's claim of a legitimate national security interest,

Justice Roberts noted. First, since the President introduced entry

restrictions in January 2017, three Muslim-majority

countries—Iraq, Sudan, and Chad—have been removed from

the list. Second, for those countries still subject to entry

restrictions, the Proclamation includes numerous exceptions for

various categories of foreign nationals. Finally, the Proclamation

creates a waiver program open to all covered foreign nationals

seeking entry as immigrants or nonimmigrants. “Under these

circumstances, the Government has set forth a sufficient national

security justification to survive rational basis review,” the

majority concluded.

Justices Breyer, Kagan, Sotomayor, and Ginsburg dissented.

Justice Sotomayor said, among other things, “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.” Ultimately, she said, what began as a policy

explicitly “calling for a total and complete shutdown of

Muslims entering the United States” has morphed into a

Proclamation putatively based on national-security concerns.

“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.”

The Supreme Court's opinion is at https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf.

Presidential Proclamation 9645 is at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/.

A related fact sheet from the Department of Homeland Security is at

https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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