On June 27, 2018, the US Supreme Court upheld the validity and constitutionality of the “US travel ban” contained in President Trump’s Presidential Proclamation 9645, dated September 24, 2017. The US Supreme Court’s ruling comes after 18 months of legal challenge, spanning the life of the current Presidential Proclamation and the two Executive Orders dated January 27, 2017 and March 6, 2017, which were found by lower Federal Courts to be unconstitutional.

Under Presidential Proclamation 9645, entry to the US for nationals of Iran, North Korea, Syria, Libya, Yemen, Somalia and Venezuela is restricted, to varying degrees.

The US Supreme Court’s Ruling

In a narrow 5-4 majority the US Supreme Court ruled that President Trump’s Presidential Proclamation dated September 24, 2017 fell “squarely within the scope of Presidential authority” and, further, that statements made during the Presidential campaign may not be legally determinative of the President’s intent.

It had been submitted that the Presidential Proclamation exceeded President Trump’s authority under the Constitution and US immigration law and moreover, President Trump had expressed a desire to enact a ban on Muslims entering the United States during his Presidential campaign. It was contended that the Presidential Proclamation was an attempt by the President to enact such a ban.

However, writing for the conservative majority, Chief Justice John Roberts stated, “…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. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself”.

On that basis, the conservative majority concluded that President Trump had acted within his authority, in the interests of national security in the execution of the US travel ban. As such, the constitutionality of the Presidential Proclamation was upheld.

The Dissenting View

In a vociferous dissent, Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg found that the majority-ruling failed to uphold the religious liberty guaranteed by the First Amendment of the US Constitution. Indeed, Justice Sonia Sotomayor placed emphasis on the statements made by President Trump during the Presidential campaign and found that the Presidential Proclamation was a manifestation of the “total and complete shutdown of Muslims entering the United States” promised by President Trump during the Presidential campaign. Justice Sotomayor expressed disappointment that the Presidential Proclamation was to remain undisturbed “because [it] now masquerades behind a façade of national security concerns”. The dissenting opinion noted that a reasonable observer would conclude that the Presidential Proclamation was motivated by anti-Muslim animus.

Public Reaction to the US Supreme Court’s Ruling

Perhaps unsurprisingly, the conservative majority ruling of the US Supreme Court has been met with widespread surprise and disappointment.

In a statement, the Director of the American Civil Liberties Union’s Immigrant Rights Project described the ruling as “one of the Supreme Court’s great failures”. Similarly, the judgment has been criticized by US politicians and media commentators alike for legitimizing discrimination and Islamophobia.

At Davies Legal Immigration, we are extremely disappointed by the US Supreme Court’s ruling and agree entirely with the dissenting view, eloquently and articulately expressed by Justice Sotomayor. We hope that in due course the travel restrictions will be lifted and fairness and equality will prevail.

Davies Legal Immigration

At Davies Legal, we offer advice and representation in connection with all areas of US business, employment and family immigration. We provide the highest standards of client care, at a competitive fixed fee. Call now for a complimentary assessment of your circumstances by a licensed US immigration attorney.

 

Published: 4th July 2018