Trump wins on foreigners’ entry ban

In a sweeping endorsement of presidential power over who may enter the United States and a huge political victory for President Trump, a deeply divided Supreme Court on Tuesday upheld his order barring most foreign travelers from five Mideast nations with mostly Muslim populations.

“The admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control,” Chief Justice John G. Roberts, Jr., wrote for the majority in the 5-to-4 ruling.

The outcome was based mainly on the conclusion that Congress, in laws passed years before President Trump entered office, had handed almost complete control over foreign arrivals to the nation’s Chief Executive.  Trump, it declared, had used that power “lawfully” in the presidential order he issued last September – the third version of his effort to curb foreign travelers from Iran, Libya, Somalia, Syria and Yemen.  The order had the potential reach of nearly 150 million people.

Aside from turning aside challenges by the state of Hawaii and others that the order went beyond laws written by Congress, the new ruling rejected a claim that the presidential order was a “Muslim ban” that unconstitutionally discriminated on the basis of religion.   The order, the majority said, did not mention religion, and was validly based on concerns about national security.

While the ruling temporarily validated the policy, it did not change the practical situation: the Trump order has been fully in effect for months, under prior, preliminary orders by the Supreme Court.  But the decision nevertheless gave President Trump a monumental legal triumph in federal court – something that has not been common over the past 18 months.

The ruling was temporary for a very significant legal reason: it did not bring to a complete end the lawsuit challenging the September order, even though the decision wiped out a federal judge’s nationwide order blocking enforcement of the entry restriction while that case moved forward in lower courts.

However, the legal reasoning used in the Chief Justice’s opinion appeared to leave little to be decided when the case does resume in the lower federal courts.  Lawyers for the challengers may be able to gather new evidence to try to counter some of the reasons that the Roberts opinion used in temporarily finding the ban to be legal, such as a suggestion that the program did allow some travelers from those countries to enter by obtaining visas.  There has been a lively public dispute about whether any significant number of waivers were being handed out.

The challengers might also seek to buttress their basic claim that the order was intended to be and actually operated as a “Muslim ban.”  Those could be ongoing issues in the case.

Whatever happens next in lower courts, though, the Trump order will go on operating at it has since early in December, when the Supreme Court, over two Justices’ dissents, permitted full enforcement even while the challenge was being reviewed by the Court.

Because enforcement had been allowed, it was not a genuine surprise that the Court majority would rule in President Trump’s favor.  The hearing the Justices held in late April had not gone well for the challengers.

What had been awaited in the ruling that has now just emerged was how the Justices would treat a series of statements that Trump had made during his presidential campaign and since taking office, some of which were flat statements that what he wanted was a “Muslim ban,” and some of which continued to hint at that.

Those statements potentially had the greatest impact on how the Justices would react to the claim that the presidential order was actually a form of religious bias in violation of the First Amendment.  In the Chief Justice’s opinion, those statements were noted, but were found to have been offset by the specific text of the September order – which did not mention religion – and by the broad, inter-agency review that had preceded the release of the order by the White House.

Even so, an interesting facet of the final ruling was a separate opinion written by Justice Anthony M. Kennedy, speaking only for himself, which suggested that the religious discrimination issue might be explored further.  However, he also remarked that the wide breadth of presidential power that the Court had found to have been exercised might not only bar attempts by the challengers to probe for further evidence of that bias, but might actually mean that the entire lawsuit could not go forward.  Kennedy said that whether the case would have to be scuttled was now up to the lower courts.

But, just as significantly, the separate Kennedy opinion seemed to strongly imply some criticism of President Trump – though not by naming him – for public statements he had made sharply criticizing courts that have ruled against him.

It may not be within courts’ power to review some statements government officials make, Kennedy wrote, but “that does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.  The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do.  Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and promise.”

Kennedy also joined, in full, the Chief Justice’s opinion for the majority, as did Justices Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas.  Thomas also wrote a separate concurring opinion, which mainly challenged the authority of federal judges sitting in a single state to issue nationwide order blocking government actions.

The four dissenters split into two groups: Justice Stephen G. Breyer wrote one of the dissents, joined by Justice Elena Kagan; Justice Sonia Sotomayor wrote the other, joined by Justice Ruth Bader Ginsburg.

Breyer and Kagan argued that the presidential order should be blocked from enforcement, and that the case in the meantime should be returned to the lower courts to more fully explore whether the President had acted out of religious bias and whether the policy had sufficient flexibility in it to permit some more foreign travelers to get entry visas.

Sotomayor and Ginsburg focused their objections on their view that the challengers already had made a strong enough case of religious discrimination that the presidential order should be blocked.  They argued flatly that the President’s own words “have created the appearance of discrimination.”  Their dissenting opinion also contended that the Trump order will cause “pain and suffering” upon “countless families and individuals, many of whom are United States citizens” (whose relatives might be barred by the order).   They would have upheld the lower court order against enforcement, without further court proceedings.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.