On June 24, 2018 the U.S. Supreme Court decided in Trump v. Hawaii to uphold a travel ban from seven predominantly Muslim countries: North Korea, Syria, Iran, Yemen, Libya, Somalia and Venezuela. The 5-4 ruling by the Court is the first substantive decision on a Trump administrative policy and sends a strong message that Trump has expansive powers under immigration law to protect national borders. Writing for the majority, Chief Justice Roberts stated that the president had ample statutory authority to make national security judgments in the realm of immigration. Roberts argued that the ban wasn’t anti-Muslim because it was “facially neutral” and that it was within the president’s legitimate exercise of his power to defend the United States through immigration courts. “The sole prerequisite,” Roberts wrote, “is that the entry of covered aliens’ ‘would be detrimental to the interests of the United States.’ The president has undoubtedly fulfilled that requirement here.” Roberts explained that Trump had ordered an evaluation of every country’s compliance with the risk assessment and then issued his findings. “Based on that review, the president found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.” Roberts argued that although the ban applies to five countries with Muslim majority populations, “that fact alone does not support an inference of religious hostility.” Those countries contained only 8% of the world’s Muslim population.
Four of the Court’s justices dissented. Justice Bryer, joined by Justice Kagan, wrote a cautiously worded dissent, arguing that the case should be sent back to the district court insofar as the ban is being applied unfairly. On the other hand, Justice Sotomayor, joined by Justice Ginsburg, issued a strongly worded dissent, criticizing the very heart of the decision. Sotomayor claimed that the decision was strongly motivated by anti-Muslim bias. She explained, “[t]he United States of America is a nation built upon the promise of religious liberty. Our founders honored that core promise by embedding the principles of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns.”
In the second part of her dissent, Sotomayor quoted Trump’s own words and tweets as evidence that his policy was motivated by an anti-Muslim bias. Sotomayor concluded, “taking all the evidence together, a reasonable observer would conclude that the Proclamation was driven by anti-Muslim animus, rather than by the government’s asserted national-security justification.” Even before being sworn into office, then-candidate Trump stated “Islam hates us” and warned that “we’re having problems with the Muslims and with Muslims coming into the country.” Trump then promised to enact a “total and complete shutdown of Muslims entering the United States,” and instructed one of his advisers to find a legal way to enact a Muslim ban.
Whether or not the Supreme Court ruling was motivated by anti-Muslim bigotry, the result remains that the United States is closing its borders to more and more immigrants. In addition, the Court’s decision provides additional ammunition for the president in his efforts to seal our borders. Trump hailed the decision as a “tremendous victory” and promised to continue to use his office to defend the country against terrorism, crime and extremism. The Supreme Court ruling comes in the midst of controversy and criticism surrounding Trump’s decision to impose “zero tolerance” for illegal immigration at the Southwest border. Trump has touted the Supreme Court ruling as a huge victory for his policy of “keeping our borders safe. Trump explained, “[t]his ruling is … a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country. As long as I am President, I will defend the sovereignty, safety and security of the American People, and fight for an immigration system that serves the national interests of the United States and its citizens.” Attorney Jeff Sessions stated that the ruling was “critical to ensuring the continued authority of President Trump – and all future presidents – to protect the American people.
Where do we Stand Now?
The Trump administration has made it exceedingly clear that it will act to secure our borders at all costs. As Trump has stated, “Our country will always be safe, secure, and protected on my watch.” In addition, although opponents of Trump’s immigration policies seemed to have gain a minor victory two weeks ago when Trump issued his executive order requiring families at the border to be kept together; it seems unlikely that this win will have a significant impact. In his remarks made following the executive order, Trump vowed to continue fighting for a wall across the southern border with Mexico. Trump stated, “we have to be tough…, safe…and secure.”
Following (but not related to) this decision, Supreme Court Justice Kennedy just announced his decision to retire from the bench next month. Trump has already expressed his intent to replace Kennedy with a conservative judge, which would significantly weaken checks on Trump’s power and produce an exceedingly conservative Supreme Court. This change may give Trump the power he has been looking for to effectively shut down U.S. borders.
For More Information
Navigating the intricacies of the legal side of applying for a visa is as tough a task. Schedule a meeting with the Pollak legal team today –– we have the insight and the experience to ensure you the best legal counsel for your situation.
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Karen-Lee Pollak is the Managing Attorney at Pollak PLLC located in Dallas, Texas. She is a frequent speaker, author and blogger on immigration issues. She can be reached at karenlp@pollakimmigration
