A sharply divided Supreme Court on Tuesday upheld the latest version of the administration’s controversial travel ban, backing an early and central piece of President Donald Trump’s promised tough-on-immigration agenda.
The 5-4 decision split the court along familiar ideological lines, with Chief Justice John G. Roberts Jr. and the other four conservatives ruling that Trump had a sufficient national security justification for a policy that on its face “says nothing about religion.”
Central to the case were Trump’s statements and tweets about the travel ban, both as a presidential candidate and after winning the White House, and whether those statements meant the travel ban was actually a pretext for a discriminatory “Muslim ban.”
“But the issue before us is not whether to denounce the statements,” Roberts wrote. “It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
Congress gave the president the power to suspend entry of foreigners when it is in the interest of the United States, Roberts wrote, but it didn’t require the president to explain his findings to the federal courts. Trump’s latest version of the ban followed a worldwide, multi-agency review of the vetting standards of other countries.
The courts cannot substitute their own assessment for a president’s national security decisions, Roberts wrote. “Because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.”
The decision prompted a cutting dissent from Justice Sonia Sotomayor, who wrote that the majority ignored facts, misconstrued legal precedent, and turned a blind eye to the pain and suffering of countless families and individuals.
“It leaves undisturbed a policy first 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,” she wrote.
Justice Ruth Bader Ginsburg joined Sotomayor’s dissent. Justice Stephen G. Breyer filed a separate dissent that Justice Elena Kagan also joined.
The ban on travelers from mostly Muslim-majority countries was one of Trump’s first major policy moves when he took office in January 2017, and the various versions of it have been tied up in legal challenges since.
Trump, in a news release, said the decision upheld the clear authority of the president to defend the national security of the United States — and also took a shot at his critics.
“In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country,” he said. “This ruling is also 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.”
The administration replaced an earlier version of the ban on Sept. 24, 2017, with a presidential proclamation that was based on a review of compliance with U.S. vetting standards. The policy indefinitely restricted U.S. entry by citizens of Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea and Venezuela. Chad was removed from the list on April 10.
The Supreme Court had already allowed the administration to implement the current version of the ban, the third overall, in December.
At issue were lower court rulings, which held that Trump overstepped his authority under federal law and unconstitutionally discriminated against Muslims.
The state of Hawaii, which brought the challenge, argued that the president didn’t have “unbridled power,” and that the travel ban trampled on the rights of states and “denigrated persons of the Muslim faith.”
Neal Katyal, who argued the case for Hawaii, called the ruling disappointing, saying that it upheld an “atrocious policy.” But he said the federal courts forced the White House to amend the ban to bring it more in line with the Constitution.
“Now that the court has upheld it, it is up to Congress to do its job and reverse President Trump’s unilateral and unwise travel ban,” Katyal said.
The case is Donald J. Trump, et al. v. Hawaii, et al., Docket No. 17-965.