Supreme Court Upholds Travel Ban Proclamation
Posted on: June 26th,2018
Relying on the President's broad authority under 8 U.S.C. §1182(f) and 1185(a), the Supreme Court held the President lawfully exercised his discretionary powers under the law to suspend the entry of aliens into the United States. The Court's Opinion emphasizes the law in question defers to the President with respect to such decisions, stating it "vests the President with 'ample power' to impose entry restrictions" and further noting that "[p]residents have repeatedly exercised their authority to suspend entry on the basis of nationality." The Court held the Proclamation is squarely within the scope of the President's authority. The President only had to show that the entry of the covered aliens "would be detrimental to the interests of the United States," and found the President fulfilled this obligation by including comprehensive details and assessment of the national security risks in the text of the Proclamation. With respect to the President's statements calling for a Muslim ban, the issue before the Court was "not whether to denounce the statements" but the significance of those statements on the President's Proclamation, which did not contain the same statements and is facially neutral. The Court found the "Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices," and emphasized the text "says nothing about religion." As a result, the Court upheld the Proclamation finding it was neutral on its face and relied on legitimate purposes related to national security.
Following the Supreme Court's ruling today, entry of foreign nationals from the following seven countries will be restricted to some degree: Iran, North Korea, Syria, Libya, Yemen, Somalia, and Venezuela. The Proclamation does provide for case-by-case waivers when a foreign national demonstrates undue hardship, and that his or her entry is in the national interest and would not pose a threat to public safety. However, Justice Breyer notes in his dissent there is no evidence the Government is applying the Proclamation as written with respect to the issuance of waivers. Justice Breyer points out that while "[t]he Proclamation provides that the Secretary of State and the Secretary of Homeland Security 'shall coordinate to adopt guidance' for consular officers to follow when deciding whether to grant a waiver," to his knowledge no guidance has issued. Consequently, the actual process and potential availability of any such waivers remains unclear.