In a 5-4 decision, the Supreme Court of the United States upheld the legality of President Trump’s Proclamation No. 9645, commonly known as the travel ban, holding that the restrictions imposed by the policy are “squarely within the scope of Presidential authority” under current immigration law. The Court reversed the October 2017 Hawaii district court’s grant of a preliminary injunction against the ban as an abuse of discretion. In explaining its reasoning, the Court stated that the federal government set forth a sufficient national security justification to sustain the travel restrictions, but pointed out that it expressed no view on the soundness of the policy, holding simply that the plaintiffs were unlikely to succeed on the merits of their claims.
The Supreme Court’s Reasoning
Chief Justice John Roberts, who wrote the majority opinion, focused on two main issues: first, whether the president had authority under the Immigration and Nationality Act to implement the proclamation’s entry restrictions on foreign nationals; and second, whether the entry policy violates the Establishment Clause of the First Amendment due to evidence of anti-religious bias.
The majority opinion devoted significant attention to determining whether the president had the authority to implement the travel restrictions. Chief Justice Roberts called attention to concerns regarding the separation of powers that could arise when the judiciary delves into national security matters. The Court, he wrote, does not have the competence required to substitute its own judgments for the president’s in matters of national security. The justices determined that the Act, under which the travel ban was implemented, “exudes deference to the President,” and “entrusts to the President the decisions whether and when to suspend entry . . ., whose entry to suspend . . ., for how long . . ., and on what conditions.”
The Court also considered the argument that the policy was motived by religious animus against Muslims. Despite the plaintiffs’ presentation of evidence in the form of statements by the president and his advisers, which cast doubt on the official objective of the proclamation, the Court declined to probe the sincerity of the government’s stated justifications for the policy. The Court clarified that the issue before it was not whether to denounce those statements, but rather to determine the significance of those statements. The Court ultimately found the policy to be facially neutral and based on legitimate purposes and as such, decided that it passes muster.
Because the Court’s ruling maintains the status quo, it will have a minimal immediate impact given that the travel restrictions have been in effect since December 2017 when the Supreme Court overruled the nationwide injunctions imposed by lower courts. While the proclamation did not identify an expiration date to the restrictions, it requires the secretary of the Department of Homeland Security to reexamine the banned countries’ compliance with federal national security standards every 180 days. The countries covered by the proclamation are Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Chad was removed from the travel ban list in April 2018 for improving its security protocols.
The proclamation imposes a range of entry restrictions that vary based on the distinct circumstances in each of the affected countries. As a reminder, the travel restrictions affect the following countries as described below:
- Libya and Yemen. The proclamation suspends travel for:
- immigrants and
- nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2).
- North Korea and Syria. The proclamation suspends travel for all entry into the United States as:
- immigrants or
- Iran. The proclamation suspends travel for:
- immigrants and
- Exception: The proclamation still permits student (F and M) and exchange visitor (J) visas.
- Somalia. The proclamation suspends travel for:
- Note: Nonimmigrants are permitted to enter the United States but are subject to additional scrutiny.
- Venezuela. The proclamation suspends travel for:
- government officials and their family members on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
- Note: The proclamation subjects other visa holders to additional scrutiny.
While Iraq is not technically included in the travel ban, the secretary also recommended the implementation of additional security measures on Iraqi nationals seeking entry into the United States.
Exceptions and Waivers
Any foreign national from the seven affected countries who possessed a valid visa on September 24, 2017 (the date of the most recent version of the travel ban or Presidential Proclamation) will not be subject to visa revocation. Travel restrictions do not apply to lawful permanent residents (green card holders), dual citizens, or those granted asylum by the United States. Waivers are also available, on a case by case basis, and may be granted if a foreign national can demonstrate that denying entry would cause the foreign national undue hardship, his or her entry would not pose a threat to the United States, and his or her entry would be in the national interest. As Justice Stephen Breyer’s dissenting opinion suggests, however, only a very small number of waivers have been granted so far.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the Supreme Court’s decision and will post updates on the Immigration blog as additional information becomes available.