In a major victory for the Trump administration, the Supreme Court of the United States of America (SCOTUS) on Tuesday ruled in favour of the President’s travel ban on people from six Muslim-majority countries— Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Authoring the majority opinion in the 5-4 ruling, Chief Justice John Roberts essentially reversed the ruling of the 9th Circuit Court that had attempted to put the travel ban on hold — a ruling that the Supreme Court had already kept from going into effect while it reviewed the case — and sent the case back to the 9th Circuit.
Chief Justice Roberts delivered the opinion of the Court, in which Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Anthony Kennedy joined. Justice Kennedy and Justice Thomas filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.
The Court ruled that Trump’s authority to determine who may come into the country is “squarely within the scope of Presidential authority under the INA”, referring to the Immigration and Naturalization Act. The ruling allows a 90-day ban on visitors from the countries, along with a 120-day suspension of the US refugee resettlement program, against those who lack a “credible claim of a bona fide relationship with a person or entry in the United States”.
It must be noted that the legal fight over the ban isn’t over, as SCOTUS has instructed the 9th Circuit to rule on the merits of the ban, asserting that it was not expressing any view on the “soundness of the policy”. However, its ruling was based on the opinion that the plaintiffs had not demonstrated “a likelihood of success on the merits of their constitutional claim”, therefore giving a major boost to the administration.
The three versions
The order challenged before the Court was the most recent of the three orders issued by the President since he took office in 2017. The first order, issued on January 27, 2017, imposed a 90-day ban on the entry into the United States of citizens from seven overwhelmingly Muslim countries – Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen – and put a 120-day hold on the admission of refugees, although it contained an exception for refugees who were religious minorities in their home countries.
The next version, which was unveiled in March, 2017 dropped Iraq from the list of covered countries, and clarified that the 90-day ban didn’t apply to those travellers who already had visas. The current version prevents some (or all) immigrants, refugees, and visa holders from the six countries mentioned above from entering the US.
The District Court had earlier granted a nationwide preliminary injunction barring enforcement of the restrictions. The 9th Circuit affirmed this ruling, concluding that the Proclamation contravened two provisions of the Act: one which authorises the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” and another which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
The ban has however been in full effect since early December, owing to an earlier Supreme Court ruling putting the injunction by the 9th circuit on hold.
Chief Justice Robert’s opinion
The Court essentially opined that the President had “lawfully exercised the broad discretion granted to him” under the Act, observing that the provision vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. The sole prerequisite for this exercise of power, it noted, was that the President should “find” that the entry of the covered aliens “would be detrimental to the interests of the United State”.
This requirement, it observed, was fulfilled by ordering several agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline, and thereafter, issuing the Proclamation “with extensive findings about the deficiencies and their impact”.
With regard to the lack of an end date for the entry restriction, the Court opined that the same was not necessary to be prescribed in advance. Noting that none of the 43 suspension orders issued prior to the impugned order specifies a precise end date, it observed, “Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality.”
The plaintiffs had argued that by restricting entry from mostly Muslim countries, the executive is guilty of religious bias in violation of the First Amendment. Usually, the Court applies “strict scrutiny” in cases involving constitutional rights, and unless the State can show that its policy is narrow and aimed at achieving a “compelling” government interest, it’ll be struck down. However, in cases not involving constitutional rights the Court typically applies “rational basis” scrutiny, wherein the State only needs to show that there’s some rational basis for the action taken in pursuit of a legitimate state function. No “compelling” purpose or “narrow” tailoring is required. As per the Court’s judgment itself, laws that are subject to strict scrutiny are almost always struck down as unconstitutional whereas laws that are subject to rational-basis review are almost always upheld as constitutional.
Rational basis review
The Court went on to apply the rational basis review in the present case to find out whether “the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes”. It then ruled that the Proclamation was in fact premised on the legitimate purpose of preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.
Besides, the Court listed three features of the policy that it opined support the Government’s claim of a legitimate national security interest. Firstly, it noted with approval the fact that since the entry restrictions were first introduced in January, 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries. Secondly, it noted that the Proclamation includes “significant exceptions” for various categories of foreign nations. For instance, it noted that it permits students and exchange visitors from Iran, while restricting only business and tourist nonimmigrant entry for nationals of Libya and Yemen, and imposing no restrictions on nonimmigrant entry for Somali nationals. Thirdly, it took note of the fact that the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants.
It then ruled that the Government had shown “sufficient national security justification” to survive the rational basis review, and struck down the injunction.