Last week the US Supreme Court ruled 5-4 in Trump v. Hawaii that President Donald Trump’s proclamation restricting entry from particular Muslim-majority countries was ‘within in his authority’.
To gain a US perspective on this, Lawyer Monthly has heard from several US legal experts nationwide on the complexities involved in this judgement and overall impact.
Brad Biren, Senior Associate, Johnston Martineau:
The Court divided itself on an interesting idea: How far back can the Court look back to determine animus in a given Executive order? In any case, under Romer v. Evans, the Court has the right to examine any governmental action for arbitrary and capricious discrimination also known as animus. The statutory authority of the President to act in the Nation’s interest or defense given to him by Congress–as they have plenary power to regulate immigration–does not include a test for animus. The court has inscribed that as a preliminary test under constitutional muster. Thus, all statutes where the plaintiffs claim discrimination or discriminatory intention can argue that an executive order fails under Romer due to the existence of animus for a specific group.
In this case, that’s exactly what the plaintiffs did–they said the President was motivated by animus. To prove there point they presented information, soundbites, and quotes from before Trump’s election. The famous “Muslim ban” statement was used for example. The Court asked at what point do we look back to examine for animus? They answered by stating that inauguration is the limitation in time for looking back and determining animus. Trump did not mention discriminatory statements related to the immigration ban after his inauguration, thus the court found no animus and separately no violations under the Congressional delegation of powers to the President.
Andrew Greenfield, Managing Partner of the Washington, D.C. office of Fragomen, Del Rey, Bernsen & Loewy:
The US Supreme Court has predictably affirmed President Trump’s authority to restrict travel to the United States by those he deems a threat to national security. Notwithstanding his calls for a Muslim ban on the campaign trail, the majority of justices determined his actions as president to be rational and not the result of religious animus.
Unlike earlier iterations, the current Ban does not apply to anyone physically in the United States as of October 18, 2017, and those abroad on that date but already in possession of US visa. There are also several classes of individuals expressly exempt from the Ban. These include US permanent residents (i.e., green card holders), dual citizens presenting passports from a non-banned country, certain diplomats and international organization employees seeking A or G visas, those holding government-issued travel documents, and asylees.
Those abroad and without visas as of October 18, 2017, and who are not exempt, will be subject to the Ban depending on their citizenship and the type of visa they are requesting, as follows:
|Country of Citizenship/Passport||Visa(s) They Cannot Apply For Under the Ban:|
|Libya, Yemen||Visitor (B) and Immigrant (US green card or residency)|
|Somalia||Immigrant (US green card or residency)|
|Venezuela||Visitor (B) (applies only to government officials and their families)|
|Iran||All visas other than student/exchange visas (F, M, & J)|
|Syria and North Korea||All visas|
The Ban offers some hope to individuals with valid and compelling stories to tell, as anyone can request a visa appointment and ask for a waiver during their interviews at US consulates. Waivers are available only to those whose travel is in the US national interest, who pose no threat to national security or public safety, and who would suffer undue hardship if denied a visa. The Ban provides numerous examples of persons who might qualify for a waiver. These include Canadian permanent residents; those pursuing important business or professional obligations or returning to their jobs, schools, or certain exchange programs; immediate relatives of US citizens and green card holders facing hardships; infants, young children and those needing urgent medical care; those attending meetings with the US government or traveling on behalf of international organizations; and valuable current and former US government employees.
Regardless of the travel Ban, all applicants for visas and admission to the US may be subject to heightened screening and corresponding delays. Prospective visa applicants from any one of the above countries should carefully consider the risks of delay before finalizing international travel plans.
Debra Opri, Esq., women’s and child rights advocate and litigator:
Having been asked to ‘weigh in’ on the US Supreme Court’s ruling that plaintiffs did not establish a case against President Trump’s travel ban under the Establishment Clause, my initial comment is that ‘under the Establishment Clause the First Amendment protection of religion requires a violation of the right of religious freedom, and that the Supreme Court failed to find such a violation.’ Let’s move this dialogue of the policies of the Trump Administration a little further.
First, this discussion is not to render yet another opinion — there are enough already. Rather, it is to ask the questions that address the conflict that confronts us as a country. Does the perceived harshness of the laws that exist versus the fine lines of the realities that permeate our society as to immigration issues weigh more heavily than does the desire to soften our borders? I’ve traveled this world. A lot. Our country is perceived as a great place. Yet, nowhere do border issues exist more than here. Why? Does the act of separating children and parents at a border requiring adherence to our laws win out? Do we counter that action by enforcing our laws or looking the other way? Do we require more tolerance or less? Is a travel ban necessary? Does the President of the United States have the right to take action or to not take action? Where do we place the emphasis of protecting our citizens? Why has immigration become a hot topic that our government seemingly doesn’t have the stomach to make decisions on? Is kicking the can down the road a policy that helps or hurts us?
In the end, it is not the opinions of millions that is an issue even the US Supreme Court has chosen to deal with. But we must ask these questions of our leaders. All of them…
Dilnaz Saleem, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC:
On June 26th in a 5-4 decision, the Supreme Court upheld a presidential proclamation that bans the entry of certain individuals primarily from Muslim majority countries stating that the ban is “squarely within” the president’s authority. These travel restrictions will continue to remain in place until the Administration lifts them or removes particular countries from the list. The justices in the majority upheld the travel ban because, as they said in their opinion, presidents have ample legal authority to make national security decisions in the area of immigration.
The travel ban has been one of the most politically fraught and hotly contested issues of Trump’s presidency. Ultimately, we see now that the Supreme Court believes that the President was lawfully exercising his authority relating to immigration matters as granted to him by Congress. The ruling, however, sends a clear message of rejecting visa applications from nationals of countries deemed to pose a security threat to the US Although the executive order allows for granting waivers on a case-by-case basis, there is no formal system in place to request such a waiver and only a very limited number of exceptions are granted.
The executive order is symptomatic of the current administration’s approach to foreign policy and immigration matters, and while the outcome in this case was not entirely unexpected, the long-term impact for those from the nations named in this travel ban are harsh. While the order certainly makes it more difficult for foreign students and those seeking to work in the US, the order makes it nearly impossible to unify families who are currently separated. It also creates greater barriers to enroll international students and recruit global talent, which makes it difficult for universities and employers to remain competitive. The ban will also serve as having a chilling effect for highly skilled labor in industries facing shortages such as medical education, research, and patient care. Individuals who may have had to wait years to obtain visas will now be stuck in limbo for an indefinite period as nothing further can be done to obtain their visa.
Jeremy Sacks, Partner, Stoel Rives LLP:
In Trump v. Hawaii, the recent US Supreme Court case upholding the Administration’s Executive Order largely barring travel to the United States by citizens of several majority-Muslim nations, Justice Sotomayor’s dissent identified the key issue for many critics—that the travel ban runs roughshod over the Establishment Clause. Despite listing many of Mr. Trump’s public diatribes against Islam and Muslims, the Majority’s opinion adopts a rational basis analysis and defers to the Administration’s facial pretext for adopting the order: We need this restriction to keep us safe.
Whether or not this assertion is true, the Court’s invocation of national security grounds to justify its abdication of meaningful review is extremely troubling. From a legal perspective, the Court has signaled to the Administration that it only needs to invoke the magic words “national security” to justify a range of actions to which the Court will defer. The White House already has cloaked significant policy decisions in the mantle of “national security”: tariffs against Canada, tariffs against the EU, separating migrant families at the border, etc., notwithstanding the lack of evidence bearing out any real “national security” concerns under applicable statutes. But the signal the Majority opinion in Trump v. Hawaii sent to Mr. Trump is clear: Go ahead. We won’t pay attention to what goes on behind the curtain of your pretext. After all, you’ve already told us that only you can fix it.
And that should give us all pause. What if Mr. Trump asserts executive privilege based on “national security” concerns to withhold key information relating to Mr. Mueller’s investigation of Russia’s intervention in support of Mr. Trump in 2016? Will the Court use a rational basis rule to ignore evidence that contradicts the Administration’s “national security” pretext? For a judge who cares about the Supreme Court’s legitimacy as a third and co-equal branch of our government, Chief Justice Roberts’ majority opinion in Trump v. Hawaii may come back to haunt him. Soon.
Are we still a government of laws and not of men, as John Adams wrote? Time will tell.