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
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
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
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