Blogs

Supreme Court Upholds Travel Ban

By Hubert Plummer posted 06-26-2018 03:44 PM

  

The Supreme Court has issued a long awaited decision in the Trump v. Hawaii case, regarding the so called travel ban.[i]

A quick history of the travel ban, President Trump issued his first travel ban only seven days after taking office.  That first attempt barred entry for people from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen for 90 days.  It was challenged and found invalid by several federal district courts.  The ban was not renewed after 90 days and the challenges became moot.

The second ban restricted immigration and travel from eight nations, six of them predominantly Muslim for 90 days.  It was initially blocked by several district court but was allowed to go into effect by the Supreme Court while the two cases move through the courts.

The third ban was issued on September 24, 2017 following a review by the Department of Homeland Security, the State Department and intelligence offices, to identify nations that had deficient information-sharing practices and presented national security concerns.  In other words, determining which nations had trustworthy security and information procedures to assure that travel documents issued to individuals were accurate.

The initial travel ban was struck down because it was characterized by the President as a Muslim ban.  Discrimination based on religion is clearly unconstitutional and the ban was struck down.  The second ban was essentially the same.  The differences were that it removed Iraq from the list and made allowances for people with direct connections to the US.  Again, the District Courts found that it was still a violation of the establishment clause of the First Amendment.

This third ban has gone through the motions of developing a basis for the ban other than religion.  The Department of Homeland Security, the State Department and intelligence agencies have done a review of foreign government compliance with a rick assessment baseline.

In a 5-4 decision Justice Roberts wrote the opinion of the Court upholding the ban, stating that the ban was based on a legitimate security concern and not just a religious basis. They held that the President has the power to issue Executive Orders such as this one, and that the Order does not violate the First Amendment.

Of other import, the Court officially overruled the decision in Korematsu v. United States, 323 U.S. 214 (1944), which sanctioned the Japanese American internment camps during World War II.  The Court stated “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248”[ii]

In dissent, Justices Sotomayor and Ginsburg state that the clear basis and intent of the ban was religious and that the Court should take into account all the statements of the President to determine the true intent of the ban.

[i] https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf

[ii] Page 38 of the decision

The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.

0 comments
11 views

Permalink