On June 26, the Supreme Court issued its much anticipated decision, upholding President Trump’s September 24, 2017 Proclamation (“Travel Ban 3.0”), which currently excludes nationals from seven countries, stating that the proclamation was “squarely within the scope of Presidential authority under the INA.” (Trump v. Hawaii, 6/26/18). The travel ban includes restrictions against five majority-Muslim nations — Iran, Libya, Somalia, Syria, and Yemen. North Korea and Venezuela are also on the list. Three other majority-Muslim nations (Chad, Iraq, and Sudan) were removed since the policy was first implemented through Executive Order in January 2017.
The Court rejected the constitutional challenge to the ban. Applying deference to the President despite the evidence presented, the Court explained that it would “uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” The court then concluded, based on the record in the case, that the ban had “a legitimate grounding in national security concerns, quite apart from any religious hostility.” In a 5-4 vote, the Court’s conservatives said the President’s statutory power over immigration was not undermined by his history of incendiary statements about the dangers he said Muslims pose to Americans.
Chief Justice Roberts delivered the opinion of the Court, and Justices Kennedy, Thomas, Alito, and Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor also filed a dissenting opinion, in which Justice Ginsburg joined.
Writing for the majority, Chief Justice John G. Roberts Jr. said that Mr. Trump had ample statutory authority to make national security judgments in the realm of immigration.
Even as it upheld the travel ban, the majority took a momentous step. It overruled Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans during World War II. But Chief Justice Roberts said this decision was very different: “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,” he wrote. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
The Executive Order travel ban did include provision for case-by-case waivers of the entry restrictions, if a consular officer determines that the applicant meets each of the following three criteria: (1) denying entry would cause the foreign national undue hardship; (2) entry would not pose a threat to the national security or public safety of the United States; and (3) entry would be in the national interest.
In guidance issued in February 2018 to Senator Chris Van Hollen (D-MD), the Department of State (DOS) advised the following in terms of how a waiver of the travel ban may be overcome: First, to satisfy the undue hardship criterion, the applicant must demonstrate to the consular officer’s satisfaction that an unusual situation exists that compels immediate travel by the applicant and that delaying visa issuance and the associated travel plans would defeat the purpose of travel. Second, the applicant’s travel may be considered in the national interest if the applicant demonstrates to the consular officer’s satisfaction that a U.S. person or entity would suffer hardship if the applicant could not travel until after visa restrictions imposed with respect to nationals of that country are lifted. Finally, to establish that the applicant does not constitute a threat to national security or public safety, the consular officer will consider the information-sharing and identity-management protocols and practices of the government of the applicant’s country of nationality as they relate to the applicant. If the consular officer determines, after consultation with the Visa Office, that an applicant does not pose a threat to national security or public safety, and the other two requirements have been met, a visa may be issued with the concurrence of a consular manager. Hopefully, further guidance will be issued by DOS and DHS to help potential applicants better understand what is required.