US SC upholds travel ban: Conservative justices defer to President Donald Trump's power, liberals dissent with 'profound regret'
The US Supreme Court broke down on partisan lines on Tuesday when it upheld President Donald Trump's ban on travel from mostly Muslim countries in a 5-4 decision.
The Supreme Court of the United States on Tuesday broke down on partisan lines when it upheld president Donald Trump's ban on travel from mostly Muslim countries in a 5-4 verdict. The conservatives on the apex court bench, led by Chief Justice John Roberts, took the president's side in a major ruling that upheld his power. A dissenting liberal justice said the court was making a historic mistake by refusing to recognise that the ban discriminates against Muslims.
The 5-4 decision was a big victory for Trump in the court's first substantive ruling on the travel ban policy. It was also the latest demonstration of a newly invigorated conservative majority and a bitter defeat for the court's liberals. The ruling came on an issue that has been central for Trump, from his campaign outbursts against "radical Islamic terrorism" through his presidency. He tweeted a quick reaction — "Wow!" — and then celebrated at greater length before TV cameras.
Chief justice John Roberts (Conservative)
Appointed by George W Bush in 2005, Roberts wrote the majority opinion for the five conservative justices: Clarence Thomas, Samuel Alito and Trump appointee Neil Gorsuch, who got his seat only after Republicans blocked former president Barack Obama's nominee for the last 10 months of his term. Justice Kennedy and Thomas filed concurring opinions.
Roberts wrote that the travel ban was well within US presidents' considerable authority over immigration and responsibility for keeping the nation safe. He rejected the challengers' claim of anti-Muslim bias, which rested in a large part on Trump's own tweets and statements over the past three years.
The policy has "a legitimate grounding in national security concerns", and it has several moderating features, including a waiver programme that would allow some people from the Muslim-majority countries concerned to enter the US, Roberts said. Through April, the administration has granted waivers to less than 2 percent of visa applicants — 579 of 33,176 — since the ban took effect. An additional 1,147 got visas through other means such as diplomatic or pre-existing refugee status.
Roberts wrote that presidents have frequently used their power to talk to the nation "to espouse the principles of religious freedom and tolerance on which this nation was founded". However, he noted that presidents and the country have not always lived up to "those inspiring words".
The challengers to the travel ban asserted that Trump's statements crossed a constitutional line, Roberts said. "But the issue before us is not whether to denounce the statements. 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," he said.
The chief justice was careful not to endorse either Trump's statements about immigration in general, or Muslims in particular, including his campaign call for "a complete and total shutdown of Muslims entering the United States".
"The government has set forth a sufficient national security justification to survive rational basis review," Roberts wrote. "We express no view on the soundness of the policy. We simply hold today that the plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."
Justice Anthony Kennedy (Conservative)
Kennedy, who was appointed by Ronald Reagan to the Supreme Court in 1987, wrote: "I join the court's opinion in full. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the executive in the conduct of foreign affairs, and in light of today's decision, is a matter to be addressed in the first instance on remand."
However, Kennedy, did seem to strike somewhat of an ominous note by adding, "There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects... An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts."
Justice Clarence Thomas (Conservative)
Thomas, an African-American justice appointed by George HW Bush in 1991, wrote: "The district court imposed an injunction that barred the government from enforcing the president's proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the executive branch from applying a law or policy against anyone —often called "universal" or "nationwide" injunctions — have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping and making every case a national emergency for the courts and for the executive branch."
"I am skeptical that district courts have the authority to enter universal injunctions... If their popularity continues, this court must address their legality."
Justice Sonia Sotomayor (Liberal)
Sotomayor, who was appointed by Obama in 2009, wrote a scathing dissent, which she summarised aloud in court. She wrote, "History will not look kindly on the court's misguided decision today, nor should it."
She wrote that based on the evidence in the case "a reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus". She said her colleagues in the majority had arrived at the opposite result by "ignoring the facts, misconstruing our legal precedent and turning a blind eye to the pain and suffering the proclamation inflicts upon countless families and individuals, many of whom are United States citizens."
She compared the case to the discredited Korematsu V US decision that upheld the detention of Japanese-Americans during World War II. Roberts responded, saying that "Korematsu has nothing to do with this case" and "was gravely wrong the day it was decided".
"Our Constitution demands, and our country deserves, a judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the court's decision today has failed in that respect, with profound regret, I dissent," Sotomayor wrote.
Justice Stephen Breyer (Liberal)
Breyer, who was appointed by Bill Clinton in 1994, joined Sotomayor in her dissent.
"...I would, on balance, find the evidence of anti-religious bias, including statements on a website taken down only after the president issued the two executive orders preceding the proclamation, along with the other statements also set forth in Justice Sotomayor's opinion, a sufficient basis to set the proclamation aside. And for these reasons, I respectfully dissent."
Latest in string of 5-4 decisions
The travel ban was among the court's biggest cases this term and the latest in a string of 5-4 decisions in which the conservative side of the court, bolstered by the addition of Gorsuch last year, won. He was chosen by Trump after Republicans in the Senate refused to grant a hearing to federal appeals judge Merrick Garland who was nominated by Obama in March 2016.
Soon after the ruling, the campaign of US Senate Majority Leader Mitch McConnell of Kentucky, who orchestrated the strategy to keep the high court seat away from Obama, tweeted a photo of McConnell and Gorsuch.
The Trump policy applies to travelers from five countries — Iran, Libya, Somalia, Syria and Yemen — with overwhelmingly Muslim populations. It also affects two non-Muslim countries, blocking travelers from North Korea and some Venezuelan government officials and their families. A sixth Muslim-majority country, Chad, was removed from the list in April after improving "its identity-management and information sharing practices", Trump said in a proclamation.
The administration had pointed to the Chad decision to show that the restrictions were premised only on national security concerns. The challengers, however, argued that the court could not just ignore all that had happened, beginning with Trump's campaign tweets, to prevent the entry of Muslims into the US.
Trump had proposed a broad, all-encompassing Muslim ban during the presidential campaign in 2016, drawing swift rebukes from Democrats as well as Republicans. Within a week of taking office, he announced the first travel ban with little notice, sparking chaos at airports and protests across the nation. While the ban has changed shape since then, it has remained a key part of Trump's "America First" vision, with the president contending that the restriction, taken in tandem with his promised wall at the southern border, would make the US safer from potentially hostile foreigners.
On Tuesday, he hailed the ruling as "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". Strongly disagreeing, Democratic Representative Keith Ellison of Minnesota said, "This decision will someday serve as a marker of shame." Ellison, the first Muslim elected to Congress, and Senator Mazie Hirono of Hawaii, who was born in Japan, both compared the ban and the ruling to the internment of Japanese-Americans during World War II.
Critics of Trump's ban had urged the justices to affirm the decisions in lower courts, which generally concluded that the changes made to the travel policy did not erase the ban's legal problems. Trump had also imposed a temporary ban on refugees in earlier versions of the travel ban, but he did not reimpose a refugee ban when the last one expired in the fall.
The current travel ban came into force in September and it followed what the administration has called a thorough review by several federal agencies, though no such review has been shared with courts or the public.
Federal trial judges in Hawaii and Maryland had blocked the travel ban from taking effect, finding that the new version looked too much like its predecessors. The rulings were largely upheld by federal appeals courts in Richmond, Virginia and San Francisco, but the Supreme Court came to a different conclusion on Tuesday.
With inputs from AP
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