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Supreme Court upholds President Trump's travel ban against majority-Muslim countries

Tuesday - 26/06/2018 10:36
Several judges went further, arguing that campaign promises should be off-limits, or at least dwarfed by government actions that are not overtly discriminatory.
(Photo: ANDREW CABALLERO-REYNOLDS, AFP/Getty Images)
(Photo: ANDREW CABALLERO-REYNOLDS, AFP/Getty Images)

WASHINGTON -- A deeply divided Supreme Court upheld President Trump's immigration travel ban against predominantly Muslim countries Tuesday as a legitimate exercise of executive branch authority.

The 5-4 ruling reverses a series of lower court decisions that had struck down the ban as Illegal or unconstitutional. It hands a major victory to Trump, who initiated the battle to ban travelers a week after assuming office last year. It was a defeat for Hawaii and other states that had challenged the action, as well as immigration rights groups.

The president had vowed to ban Muslims during the 2016 presidential campaign and continued his attacks on Twitter after his election. But the high court said those statements did not constitute evidence of religious discrimination.

Chief Justice John Roberts issued the opinion, supported by the court's other four conservatives. He said entry restrictions were limited to countries previously designated by Congress or prior administrations as posing national security risks. And he noted that it followed a worldwide review process by several government agencies.

"The proclamation is squarely within the scope of presidential authority," the chief justice said. He added that claims of religious bias against Muslims did not hold up against "a sufficient national security justification." However, he said, "We express no view on the soundness of the policy."

Justice Stephen Breyer, however, found "evidence of anti-religious bias" in dissenting, along with Justice Elena Kagan. In a separate dissent, Justice Sonia Sotomayor said: "A reasonable observer would conclude that the proclamation was motivated by anti-Muslim animus."

The legal battle began immediately after Trump issued his first travel ban in January 2017. That 90-day ban on travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, and a 120-day ban on refugees worldwide, was struck down by federal district and appeals courts the following month.

Trump's second version, issued in March 2017, dropped Iraq from the list of affected nations and exempted visa- and green card-holders. It fared no better, getting struck down last spring before the Supreme Court ruled a year ago that travelers without close ties to the USA could be barred while vetting procedures were reviewed.

After Trump issued his third version in September — subtracting Sudan, adding Chad, North Korea and government officials of Venezuela, setting separate criteria for each country and making it indefinite rather than temporary — federal courts again struck it down. In December, the justices allowed it to go into effect, and in January, they scheduled it for oral argument.

Hanging in the balance were nearly 150 million residents of Iran, Libya, Somalia, Syria and Yemen. Chad, also majority-Muslim, was removed from the list in April. North Korea and Venezuela are not part of the legal battle.

The case reached the Supreme Court from two liberal federal appeals courts — the 9th, based in San Francisco, and the 4th, based in Richmond, Va. Those courts and the district judges below said courts can and should examine the purpose behind government actions; that Trump's words revealed his purpose to be, at least in part, banning Muslims; that his initial focus on six majority-Muslim nations was a means to that end; and that Trump as president cannot distance himself from Trump as candidate.

Indeed, most of the judges who issued rulings on Trump's travel ban said his statements as a candidate, president-elect and president were relevant.

"These statements, taken together, provide direct, specific evidence of what motivated both (executive orders): President Trump’s desire to exclude Muslims from the United States," Chief Judge Roger Gregory wrote for the U.S. Court of Appeals for the 4th Circuit in a 10-3 ruling.

Neal Katyal, a former U.S. acting solicitor general who represented Hawaii and immigration rights groups before the high court, contended in legal papers that "for over a year, the president campaigned on the pledge, never retracted, that he would ban Muslims from entering the United States."

On the other side, some judges and legal analysts argued that campaign promises should be off-limits, or at least dwarfed by government actions that are not overtly discriminatory.

Judges and legal analysts who defended the travel ban argued that Trump's words cannot form the basis for a constitutional violation. It takes too much interpretation, they said, to read anti-Muslim bias into an executive order or proclamation that, on its surface, is devoid of religious content.

Several judges went further, arguing that campaign promises should be off-limits, or at least dwarfed by government actions that are not overtly discriminatory.

"Opening the door to the use of campaign statements to inform the text of later executive orders has no rational limit," 4th Circuit Judge Paul Niemeyer wrote in a dissent. He mused that such past history could extend to "statements from a previous campaign, or from a previous business conference, or from college."

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