On April 25, 2018, the U.S Supreme Court began hearing legal arguments in Trump v Hawaii. To the surprise of many attorneys and legal commentators alike, the initial impression is that the U.S Supreme Court may uphold the constitutionality of President Trump’s “travel ban”.

The Predominant View

During the first day of the appeal hearing, two justices – Chief Justice Roberts and Justice Kennedy – asked a number of questions which appeared to suggest that they doubted the validity of the appeal. Chief Justice Roberts challenged Hawaii’s assertion that the travel ban was rendered unconstitutional by President Trump’s vociferous desire to ban Muslims entering the United States, during his Presidential campaign. Similarly, Justice Kennedy appeared to express the view that it was for the President to consider whether national security required immigration restrictions and was not a matter for Court review. Indeed, Justice Kennedy highlighted that the travel ban is subject to reassessment every 180 days, suggesting that the travel ban is more flexible than critics have contended and President Trump retains a discretion in the matter.

Justice Alito remarked that the travel ban did not appear to be a Muslim ban in his view, since it affects only a small proportion of the world’s Muslim population and, in any event, there were other justifications, in his view, for President Trump to have selected the countries in question for a travel ban.

A More Liberal View

At the other end of the spectrum, the more liberal U.S Supreme Court justices rigorously challenged the constitutionality of the travel ban. In particular, Justice  Sotomayor noted that Congress have already enacted a visa waiver program, which enabled a higher degree of vetting to take place in appropriate cases. Justice Sotomayor enquired where the U.S President obtained authority to take further measures than Congress had already deemed adequate. Equally Justice Kagan observed that the real question was whether reasonable observers would consider the travel ban to be motivated by discrimination, based on comments previously made by the U.S President.


While the more liberal U.S Supreme Court Justices appeared to target their most robust questions towards the U.S Solicitor General, the attorney for President Trump, the general consensus appears to be that there is a real possibility the U.S Supreme Court may defer to the U.S President, on the grounds of national security and thereby uphold the constitutionality of the travel ban. The final ruling is expected in June 2018. We will endeavor to keep you updated.

Davies Legal Immigration

At Davies Legal Immigration, we represent clients in connection with all types of business, employment and family US immigration. We provide a comprehensive service, including clear and concise advice from the outset, a pragmatic approach and efficient working practices. We understand the importance of our cases to clients and adopt a well-reasoned, diligent approach, in order to maximize your prospects of success. Call now to speak to a licensed US immigration attorney and obtain a free, no obligation quote.

Published: 2nd May 2018