The Supreme Court on Tuesday ruled in favor of President Donald Trump’s travel ban, a major victory in the administration’s quest to restrict the flow of immigrants and visitors into the United States.
In a 5-4 decision, the justices affirmed the president’s vast powers over matters of national security – even as they grappled with Trump’s anti-Muslim statements and the intent behind the controversial policy.
The latest version of the ban levels a range of travel restrictions against five majority-Muslim countries – Iran, Libya, Somalia, Syria and Yemen – as well as North Korea and Venezuela. Chad, another majority Muslim nation, was removed from the list in April.
Although several federal courts had blocked the ban nationwide, the justices allowed the policy to take full effect in December pending consideration of the merits of the case. The temporary order allowing full implementation was an ominous sign for opponents of the Trump policy, particularly since only two justices-liberals Ruth Bader Ginsburg and Sonia Sotomayor- dissented.
The ruling on Tuesday reverses the lower court decisions and will allow the policy to remain in place indefinitely.
“The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” Chief Justice John Roberts wrote in the majority. “The text says nothing about religion.”
Cecillia Wang, deputy legal director with the American Civil Liberties Union, said the decision marked “a dreadful day” for the United States. “But we Americans will fight on to express the will of the people to uphold equality and freedom,” she tweeted.
Prior to the ruling, court-watchers speculated that Justice Anthony Kennedy, the court’s frequent swing vote, might struggle to reconcile the objections to anti-religious bias that he stated in his Masterpiece Cakeshop decision earlier this month with a vote for the Trump administration in the travel ban case.
In Masterpiece Cakeshop, Kennedy upheld a baker’s religious-based refusal to sell a cake for a gay wedding on the grounds that a state civil rights commission that ruled against the baker showed “hostility” to the baker’s religious beliefs. In the travel ban case, however, Kennedy apparently set aside concerns about anti-religious bias in deference to the executive branch’s prerogatives concerning national security.
The new high court decision marks the conclusion of a protracted legal fight over the travel ban, which critics argue stems from Trump’s discriminatory attitude toward Muslims.
On the campaign trail in December 2015, Trump called for a “total and complete shutdown” of Muslim visitors to the U.S., a reaction to a mass shooting in San Bernardino, Calif. – a promise legal opponents cited as the impetus for the three successive versions of the travel ban.
In a statement posted to his campaign website days after the terror attack, Trump said Muslims needed to be barred until U.S. officials “can figure out what is going on.”
Throughout the litigation over the travel ban, Trump’s tweets about the policy have loomed large. As administration lawyers sought to portray the policy as well within presidential authority and unrelated to Trump’s campaign vows, Trump often undermined those arguments.
Last June, he expressed regret about altering the original policy, complaining that his lawyers were pushing a "watered down, politically correct version."
In September, Trump again suggested that he was unsatisfied with his own policy. "The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!" he wrote.
Judges reviewing Trump’s policy also seized on his retweeting of anti-Muslim videos from Britain and another message broadcasting an apocryphal story about a U.S. general ordering Muslim radicals shot with bullets dipped in pigs’ blood.
Trump wasted little time in office before he signed the first travel ban, which halted visas to people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for a 90-day period and suspended the refugee resettlement program for 120 days. The stated purpose of the policy was to conduct a review of security and vetting from those nations.
During the televised signing of the executive order on a Friday in late January 2017, Trump read a variation on its title, “Protecting the Nation from Foreign Terrorist Entry into the United States,” and added, “We all know what that means.”
Within hours, the policy prompted confusion and distress in airports worldwide – an immediate demonstration of Trump’s disruptive approach to governance and opposition to immigration.
Top administration officials didn’t receive a copy of the order until two hours after the televised signing, according to an inspector general’s report released roughly a year later.
The hasty rollout left U.S. Customs and Border Protection – the agency tasked with implementing the policy – scrambling to figure out which travelers should be barred entry to the U.S. and how to handle green card holders.
Powerful lobbying forces – including major universities, technology companies and tourism-related businesses – mobilized against the ban, and opponents won a series of legal rulings halting the policy. Trump vowed to take the issue directly to the Supreme Court, but the administration eventually opted to rescind the original policy and issue a replacement in March of that year.
The second version of the travel ban dropped Iraq from the list, which spared further embarrassment for a government working closely with American troops to fight ISIS.
In addition, the reworked policy stated that people with green cards and existing visas would not be subject to the 90-day travel pause. The revised order also removed a provision that may have benefited Christian refugees in majority-Muslim nations.
Still, federal judges in Hawaii and Maryland blocked the policy before it could take effect, ruling that the ban amounted to unconstitutional discrimination against Muslims.
The Trump administration failed to convince federal appeals courts to reverse the decision, eventually elevating the matter to the Supreme Court. In June 2017, the justices issued a short-term compromise ruling that permitted Trump to implement his policy, but exempted would-be immigrants and travelers with "bona fide" U.S. ties.
Meanwhile, the Trump administration proceeded with a security review of the six nations and refugee program.
When the review of the countries concluded in September, the ban morphed into its third and current iteration, a mix of travel restrictions against citizens of eight countries. In an apparent bid to undermine claims that the policy was aimed at Muslims, Trump added to the mix limits on travelers from Venezuela and North Korea. The latest version of the ban includes provisions for people from all affected nations to apply for waivers to enter the U.S., but immigration attorneys have claimed their clients aren’t being approved.
Even as the legal fight over three separate travel bans played out in court, the Trump administration appeared to achieve its goal of reducing the flow of travelers from those countries.
The number of non-immigrant visas issued to people from six majority-Muslim travel ban countries fell sharply over a one-year period that began in March 2017.
A POLITICO analysis found that over the same period, non-immigrant visas to the world’s 50 Muslim-majority countries dropped 19 percent when compared to levels in fiscal year 2016.
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