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Supreme Court Upholds Trump’s Travel Order, 5-4

Supreme Court Upholds Trump’s Travel Order, 5-4

The justices wrote that the travel order does not exceed Trump’s authority.

https://www.youtube.com/watch?v=npvd-VVqh9Q

The Supreme Court has ruled 5-4 to uphold President Donald Trump’s travel order. The justices wrote that the language within the travel order is clear and does not exceed Trump’s authority.

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

The third rendition of the travel order, along with the previous versions, was widely mischaracterized as a travel ban and painted as a Muslim-ban, though the order never mentioned or even targeted any religion. The order did take issue with several long-stand state sponsors of terror, many of which happen to be Muslim majority countries.

Chief Justice John Roberts said the travel order “is based on legitimate purposes, without saying anything about religion.” The justices noted that the order does not include Iraq, which is one of the largest Muslim countries in the Middle East.

The justices concluded that the government provided “sufficient national security justification.” They also decided that the “plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.”

SCOTUSBlog found this as notable from the decision:

Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: 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 (Jackson, J., dissenting).

Here’s an excerpt from the opinion:

For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial
control.” Fiallo v. Bell, 430 U. S. 787, 792 (1977); see Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the
conduct of foreign relations [and] the war power.”). Because decisions in these matters may implicate “relations with foreign powers,” or involve “classifications defined in the light of changing political and economic circumstances,”such judgments “are frequently of a character more appropriate to either the Legislature or the Executive.” Mathews v. Diaz, 426 U. S. 67, 81 (1976).

Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen. In Kleindienst v. Mandel, the Attorney General denied admission to a Belgian journalist and self described
“revolutionary Marxist,” Ernest Mandel, who had been invited to speak at a conference at Stanford University. 408 U. S., at 756–757. The professors who wished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional “right to receive information” was implicated. Id., at 764–765. But we limited our review to whether the Executive gave a “facially legitimate and bona fide” reason for its action. Id., at 769. Given the authority of the political branches over admission, we held that “when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted constitutional interests of U. S. citizens. Id., at 770.

Roberts wrote that the court found that the travel order is “premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.” The plaintiffs emphasized “that five of the seven nations” have Muslim majority populations, but the Court reminded them “that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.”

Trump’s administration removed Chad in April after the country “improved its identity-management and information sharing practices sufficiently to meet the baseline security standard of the United States.” Trump had the country on the list after it ran out of passport paper.

Iraq became exempt from the order in March 2017 after then-Secretary of State Rex Tillerson spoke with the Iraqi government “about vetting measures in place that would prevent suspected terrorists from leaving Iraq and coming to the United States.” The administration dropped Sudan in September 2017. I cannot find a reason given by Trump or his officials, but sources told the media said the decision came after the government cooperated with the US “on national security and information-sharing.”

For the countries that remain, the Court found that the travel order “includes significant exceptions for various categories or foreign nationals.” From the opinion:

The policy permits nationals from nearly every covered country to travel to the United States on a variety of nonimmigrant visas. See, e.g., §§2(b)–(c), (g), (h) (permitting student and exchange visitors from Iran, while restricting only business and tourist nonimmigrant entry for nationals of Libya and Yemen, and imposing no restrictions on nonimmigrant entry for Somali nationals). These carveouts for nonimmigrant visas are substantial: Over the last three fiscal years—before the Proclamation was in effect—the majority of visas issued to nationals from the covered countries were nonimmigrant visas. Brief for Petitioners 57. The Proclamation also exempts permanent residents and individuals who have been granted asylum. §§3(b)(i), (vi).

Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants
or nonimmigrants. According to the Proclamation, consular officers are to consider in each admissibility determination whether the alien demonstrates that (1) denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interest of the United States. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). On its face, this program is similar to the humanitarian exceptions set forth in President Carter’s order during the Iran hostage crisis. See Exec. Order No. 12206, 3 CFR 249; Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, at 611–612 (1980) (outlining exceptions). The Proclamation also directs DHS and the State Department to issue guidance elaborating upon the circumstances that would justify a waiver.

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Comments

Vindication some 18 months later. Justice is slow.

    oldgoat36 in reply to dystopia. | June 26, 2018 at 11:06 am

    I don’t really consider it justice when the left got what they wanted, obfuscation and delay. And the 5/4 vote is and should be very troubling.

      JohnC in reply to oldgoat36. | June 26, 2018 at 11:11 am

      Damn right. It should be 9-0. They’re ruling on the law and it’s right there in the Constitution. The 4 against know it’s the law but they don’t ‘like’ it.

        snopercod in reply to JohnC. | June 26, 2018 at 1:16 pm

        Two of those four will be gone soon. Have patience.

          Matt_SE in reply to snopercod. | June 26, 2018 at 10:07 pm

          Re: gone soon.

          Take a moment and imagine what the atmosphere will be like if RBG expires, knowing that Trump will fill her vacancy. The left has turned that bitter old racist into a cultural icon, so it’ll be like the end of the world for them.

      moonmoth in reply to oldgoat36. | June 26, 2018 at 5:27 pm

      I’m with you, oldgoat and JohnC. A 5-4 decision at the price of obfuscation, delay, and legitimization of a bogus narrative doesn’t feel like much of a win.

“The justices concluded that the government provided “sufficient national security justification.”
That is not how the MSM will portray this.

brightlights | June 26, 2018 at 10:33 am

I’m getting my ear plugs because the screams from the left will be deafening.

    pwaldoch in reply to brightlights. | June 26, 2018 at 10:53 am

    Nah, that’s music to my ears. Leftist butthurt always sounds like winning to me. 🙂

    Valerie in reply to brightlights. | June 26, 2018 at 10:55 pm

    Of course they are going to scream. I’ve only read the syllabus, and it is remarkably harsh. It is a long, elegant, and yet direct way of saying “Didn’t any of you people go to law school?”

American Human | June 26, 2018 at 10:38 am

Although, I believe, the leftists taking POTUS to court over this 18 months ago have already won.

Sotomayer first says that you must discriminate in Ricci & in Shutte, Then says you cant discrminate in Abbot v perez and in the trump travel ban

Is she consistent?

Was the issue of lower court judges issuing nationwide injunctions addressed at all?

    MSO in reply to MSO. | June 26, 2018 at 12:05 pm

    Good news, Justice Thomas at least addresses the issue of what he calls universal injunctions:

    “These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role….

    No persuasive defense has yet been offered for the practice. Defenders of these injunctions contend that they ensure that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch…. But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. They at best “boi[l] down to a policy judgment” about how powers ought to be allocated among our three branches of government….

    If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

Nope….they would only have won if POTUS had relented completely on the travel ban and not stood his ground and won in the Supreme Court. I’m celebrating and will enjoy all the meltdowns from the nutty left.

5-4. Why am I not surprised that the “wise latina” has no idea how to INTERPRET LAW. sotomayor is ruled by her emotions, and is either wilfully ignorant of or out right hostile to THE RULE OF LAW. It’s not called THE RULE OF EMOTIONS. I have no doubt she would have hit Scalia in the head with her baseball bat. Violence is what leftists resort to when they are defeated on principles, policies, ethics, and the law. We need an impeachment trigger for SCOTUS justices. 80% fail rate and there’s the door.

    Joe-dallas in reply to CKYoung. | June 26, 2018 at 11:02 am

    see my comment above – “Sotomayer first says that you must discriminate in Ricci & in Shutte, Then says you cant discrminate in Abbot v perez and in the trump travel ban”

    rdm in reply to CKYoung. | June 26, 2018 at 5:52 pm

    Hell with interpreting law here. All she has to do is read law. It’s in plain English. There isn’t any interpreting to be done.

This is my favorite quote, and it is a dire warning if I have ever seen one.

“In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”

inspectorudy | June 26, 2018 at 11:08 am

When you consider the lack of logic used by the dissenting justices, who or what should be the process when national security is at stake? When the POTUS knows of or learns of imminent threats, is he/she supposed to go before Congress and plead for protection of America? These are the same fools who demand open borders but would be the first to complain about lack of security in the streets.

Close The Fed | June 26, 2018 at 11:15 am

A step in the right direction. I dislike all these qualifiers: the proclamation has carve outs, etc.

He needs to assert presidential power and if the courts do this again, ignore them and ask how many divisions they have.

The constitution says the federal government will protect the states from “invasion.” Where are our troops on our borders protecting us? Illegals everywhere I go!

I’m ready for “maximum pressure” on Mexico to end this and for a presidential proclamation per Daniel Horowitz declaring that all aliens without legal permission to enter will be returned, bar none.

https://www.conservativereview.com/news/its-time-for-trump-to-use-his-trump-card-on-immigration/

It’s pathetic that the vote was 5-4. The dissenting 4 would’ve voted the other way had it been the light working lightworker’s policy.

I get the necessity of the ban … OTOH I don’t want this used as a precedent to shunt to the President what should be Congressional immigration decisions. I’m a little uneasy with this even though the fact is we have to control who we allow to immigrate here. Yer pays yer money and takes yer chances I guess.

    stevewhitemd in reply to PODKen. | June 26, 2018 at 12:23 pm

    PODKen: it’s reasonable to be careful about executive authority in a democratic republic. The solace is that President Trump acted well within his Article II authority and the authority granted him by Congress. The ONLY reason this came up in court was the #Resistance was looking for a way to cause trouble and score points.

    With this ruling the USSC has —

    — reaffirmed traditional executive authority
    — slapped down activist district court judges
    — revoked the execrable Korematsu decision

    Not bad for a morning’s work.

No matter when in the last 1400 years; no matter where in the world, one constant prevails. Find Muslims, find trouble.

Pretty fancy talk at SCOTUSblog about Korematsu. “The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful” … too bad is wasn’t unlawful, “objectively” or otherwise, for 74 years. A 6-3 majority said so. N.B.—74 years is not a trivial interval; it’s something over 30% of all of US history.

We put far too much weight on what nine unelected nobodies in silly robes decide to inflict on us.

    stevewhitemd in reply to tom_swift. | June 26, 2018 at 12:24 pm

    A fair point and one that Congress could have fixed long before now.

    Imagine though if we didn’t have Gorsuch on the court…

“that (1) denying entry would cause undue hardship; (2) entry
would not pose a threat to public safety; and (3) entry
would be in the interest of the United States. ”

#’s 2 & 3 seem like a big deal to me.

The bottom line is that the current system is repugnant. It is human trafficking of the poor, at their own expense and risk, so they can become a semi-servant labor class without protections of our laws. Those who support it are little different than those who supported slavery for economic benefit.

    MajorWood in reply to elle. | June 26, 2018 at 5:06 pm

    I feel like going over to the ICE protests with a big sign that says “Let my Gardener Go!” or “Who is going to mow my grass you ICE bastards?”

    Or maybe “Brown is the new Black”

    Or “Slavery is alive an well.” Just different people be doin it.

    Or “We are better than judging people by the color of their skin” Martin Luther King (1968 – 2018)

“act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: 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 (Jackson, J., dissenting).”

Could this also be the argument use to preclude the prosecution of a President of Obstruction when firing a FBI Director.

stevewhitemd | June 26, 2018 at 12:19 pm

We get a two-fer on this one. As the Instapundit notes, the opinion also reverses Korematsu, 1944:

Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: 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 (Jackson, J., dissenting).

It’s vaguely shocking that Roberts actually cared what the text said, and not rely solely on things Trump said during his presidential campaign.

DINORightMarie | June 26, 2018 at 2:22 pm

…foreign nationals seeking admission have no constitutional right to entry….

–Majority Opinion, Justice Roberts

That Easter egg, that little golden nugget, is SCOTUS confirmation that what the left has been preaching, teaching, and screeching since at least Obama’s regime was in power…..is blatantly illegal and Unconstitutional!

There is NO RIGHT for anyone, from anywhere, to come to this country from another nation. Period. And the Executive has the heavy responsibility to protect this nation, and defend it. He is on the side of the Constitution.

#WINNING!

Left unresolved: What if Trump had explicitly banned the entry of Moslems? While I believe that would be bad policy, I also believe that so long as it remained within the authority congress gave the president, it would be constitutional. The majority, by emphasizing that this order didn’t do that, leaves open the possibility that the president can’t do that.

The four liberal justices are increasingly voting as a bloc. So much for this being a deliberative body. Also, it is now becoming very clear the importance of Gorsuch’s appointment. Think of all the recent rulings that would have gone differently and haw that all would have affected this country.

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