President Donald Trump's travel ban has been controversial from the start. The Executive Order, restricting immigrants from majority-Muslim countries, was rewritten twice after several federal courts repeatedly blocked different versions of the ban, citing "significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order" that "plainly discriminates based on nationality."
The Supreme Court, however, removed one of those injunctions against the ban this morning, sending the case back to the Ninth Circuit with some forceful language citing federal immigration law that "exudes deference" to the president and allows him "broad discretion to suspend" the entry of noncitizens into the United States.
Deference and Detrimental Entry
The Supreme Court disregarded claims that President Trump exceeded his authority in ordering the travel ban, pointing to Section 1182(f) of the Immigration and Nationality Act, which, the Court reasoned, allowed the president can block noncitizens from entering the United States as long as he determines their entry "would be detrimental to the interests of the United States."
This assertion of expansive presidential authority on immigration was bound to draw comparisons between this case and the infamous ruling in Korematsu v. United States. That ruling, widely regarded as one of the Court's worst, endorsed internment camps for Japanese-Americans during World War II. Chief Justice John Roberts, writing for the 5-4 majority, attempted to distinguish the two cases, however. "The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of presidential authority," Roberts argued. "But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission."
Text and Context
Those challenging the ban, citing a presidential campaign that exhibited "religious intolerance, animus, and discrimination," argued the latest travel ban violated the Constitution's establishment clause, which prohibits favoring one religion over another. And lower courts agreed. When granting the injunction at issue in this case, U.S. District Judge Derrick Watson said, "Any reasonable, objective observer would conclude ... that the stated secular purpose of the Executive Order is, at the very least, 'secondary to a religious objective' of temporarily suspending the entry of Muslims."
But the majority of the Supreme Court weren't convinced. Despite Trump campaign statements calling for a "total and complete shutdown of Muslims entering the United States" and Rudy Giuliani's admission it was a "Muslim ban," the Court focused on the text of the Executive Order, and whether it was neutral on its face. "The text says nothing about religion," Roberts wrote. "Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations," he conceded. "Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world's Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks."
The case now heads back to the Ninth Circuit, without the injunction, "for such further proceedings as may be appropriate"