US Supreme Court Upholds Travel Ban | Morgan Lewis

Friday, 29 Jun, 2018

One argument the Trump administration made to the Supreme Court this spring to prove the legality of its travel ban on several majority-Muslim countries was that it had a robust waiver process that would allow people in on a case-by-case basis.

The Supreme Court ruling, by a 5-4 Conservative-driven majority, came after lower courts had struck down each of the three versions of the president's travel ban.

"By blindly accepting the Government's misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security", Sotomayor wrote, "the Court redeploys the same unsafe logic underlying Korematsu and merely replaces one "gravely wrong" decision with another".

Although a judge in Hawaii ordered the government last fall not to enforce the latest travel ban, the Supreme Court lifted that order in December, and the restrictions have been in place since then. Writing for the majority, Chief Justice John Roberts said that the U.S. President has the Constitutional authority to block "entry of nationals who can not be adequately vetted".

Trump pounced on the decision as an endorsement of his authority to defend national security and "a tremendous success and victory for the American people".

New Jersey Attorney General Gurbir Grewal, who was among those who challenged the ban, said, "we may not always win, but we'll always stand up for what's right".

At home, citizens from the mostly Muslim countries, including those who were in the process of migrating to the U.S., also expressed devastation at the ruling. The 5-4 ruling validated the third and most recent version of the ban, which applies to travelers from five mainly Muslim nations - Iran, Libya, Somalia, Syria and Yemen - and from North Korea, about 150-million people in total.

Dozens of people gathered outside the court building on Tuesday, holding banners and shouting slogans such as "No ban, no wall" to protest against the decision on a policy Donald Trump has fought for since his first week in office in January 2017.

In dissent, liberal Justice Sonia Sotomayor said there were "stark parallels" with the court's now discredited 1944 decision that upheld US internment of Japanese-Americans during World War Two.

Opponents - and the court's liberal-leaning justices - decried what they saw as a measure targeting Muslim countries, and referred back to Trump's anti-Muslim statements during his election campaign. The ban went through several makeovers, each met with backlash, but the SCOTUS ultimately signed off on the third iteration of the executive order. Roberts said it was "wholly inapt to liken that morally repugnant order to a facial neutral policy denying certain foreign nationals the privilege of admission".

President Trump responded to the ruling on Twitter, saying, "SUPREME COURT UPHOLDS TRUMP TRAVEL BAN". We are disappointed they ignored statements on how the ban will affect Muslim people and the message it sends to people.

And this debate over the court is already starting to go nuclear with yesterday's retirement by Anthony Kennedy, the swing vote on so many issues, as both sides gear up for battle over a Trump nominee who will undoubtedly push the Supremes significantly to the right. In addition, the ban also covered North Korea and Venezuela.

Look, I get why the travel ban-revised after the original one was blocked by the courts-is so controversial, given that it's aimed at majority Muslim countries. "I think he may feel emboldened to continue to restrict immigration in a variety of ways because he believes that even if challenged in court, he may well win".

"At the same time, we align with the sentiment expressed by the US Travel Association and other industry leaders that an overt message welcoming legitimate worldwide travellers to the United States should accompany any security steps aimed at terrorists".