SCOTUS overturns injunction on travel ban

The US Supreme Court on June 26 ruled 5-to-4 (PDF) in Trump v. Hawaii that President Donald Trump's proclamation restricting entry from particular Muslim-majority countries was "squarely within the scope of presidential authority" under the Immigration and Nationality Act. The court also found that plaintiffs challenging the proclamation were unlikely to succeed on their claim that the ban violates the Establishment Clause of the First Amendment. Chief Justice John Roberts wrote for the majority: "[T]he Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim." The ruling overturns a preliminary injunction issued by the Ninth Circuit Court of Appeals in December, which blocked the policy from taking effect. The Supreme Court remanded the case back to the lower courts for "further proceedings."

Justices Anthony Kennedy and Clarence Thomas filed concurring opinions. Justice Stephen Breyer filed a dissent, joined by Justice Elena Kagan. Justice Sonia Sotomayor also filed a dissent, joined by Justice Ruth Bader Ginsburg. Sotomayor protested in her dissent that the decision "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."

Korematsu decision overturned —almost
Sotomayor in her dissent also invoked the 1944 Korematsu case, which upheld the forced internment of Japanese-Americans in World War II. She wrote: "Today's holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States." The majority opinion countered that "Korematsu has nothing to do with this case." While stopping short of explicitly overturning Korematsu, the majority opinion did add: "The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is al- ready obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.'" This last line quotes the dissent in the Korematsu decision by Justice Robert H. Jackson.

The travel ban restricts travel to the United States from seven countries, including five predominantly Muslim nations—Iran, Libya, Somalia, Syria and Yemen. The other two countries are North Korea and Venezuela. An eighth country, Chad, was removed from the list in April. The suspension of visas to citizens of Venezuela applies only to certain government officials and their immediate families. The order cited a determination by the Department of Homeland Security that these governments have not fully shared information or taken precautions deemed necessary to protect US security interests.

This was the third version of Trump's travel ban, which has faced numerous legal challenges. (Jurist, NYT, NYT, American Bar Association Journal)