Predicting the Effects of the Supreme Court’s Travel Ban Ruling

Visa, Travel BanThe Supreme Court has heard oral arguments in Trump v Hawaii, the legal challenge to President Trump’s most recent travel ban, setting up a decision later this year that could be the most important of the current term.  Although public discussion of the ban has largely zeroed in on questions about Muslim discrimination, the Supreme Court’s ruling will have a lasting impact on the balance between executive and judicial authority which could shape the parameters of each branch’s role in national governance.

Travel Ban 3.0 Has its Day in Court

In September of last year, President Trump issued its third iteration of the ban restricting travel from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen (Chad was removed from the list in April of 2018).  According to the President, these countries were selected because their political relationship with the United States suggests a greater risk of terrorist activity by individuals traveling from those nations.  Five of the seven countries listed in the latest version of the travel ban are predominantly Muslim, which is consistent with Trump’s campaign promises to crack down on Islamic immigration.

Critics of Trump’s travel ban agenda have consistently accused the President of targeting Muslims in violation of the Constitution’s prohibition on discrimination; however, the administration has responded that when national security is concerned the President has been granted significantly more latitude from Congress to act without judicial review.  Lower federal courts in Maryland and Hawaii disagreed with the President’s belief that he can act on national security issues without judicial review and pointed to statements made by Trump during his 2016 election campaign as evidence that the ban violates the constitution by discriminating against Muslims.  The administration’s appeal has raised several critical issues, and in doing so has presented the Court with an opportunity to make a ruling that alters how the judiciary and executive branch interact.

What is at Stake in SCOTUS Travel Ban Ruling

The central challenge to the travel ban focuses on discrimination against Muslim immigrants; however, the way the Supreme Court rules on that central issue could have a ripple effect on the relationship between the executive and judicial branch in a few important ways:

  • Presidential authority over immigration under the umbrella of national security: The administration argues that Congress granted the President significant authority over immigration with law which allows presidents to prevent entry of anyone who would be “detrimental to the interests of the United States.”  According to this argument, the judicial branch does not have authority to review executive orders on immigration matters when national security is part of the equation.  If the Court agrees with the administration, this transfers significant authority over immigration to the executive, and could impact other hot button issues including DACA and Mexico – US relations.
  • Justification for potential discrimination:  One of the early failures of the travel ban was the administration’s insufficient justification for selecting the targeted countries.  According to Trump, the countries he zeroed in on are high national security risks; however, it took three versions of the order for the administration to provide details on how the countries were selected.  The administration has provided some information on how the countries were selected, but critics still find the process dubious and unsupported by evidence.  A ruling in favor of the President on this issue grants the executive more latitude to act without extensive evidentiary justification that stated national security concerns are legitimate.
  • Use of campaign statements to determine intent: In striking down this version of the travel ban, lower courts in Hawaii and Maryland pointed to statements made by Trump during the 2016 campaign which targeted Muslim immigrants.  According to prior rulings, these statements are evidence that the intent of the travel ban is discrimination; however, use of campaign promises to ascertain legislative or executive intent is uncommon and far reaching.  The administration argues those statements, made when Trump was a citizen, should have no bearing on how the Court interprets his executive orders.   If the Court allows campaign statements to suggest intent, this could open the door for widespread scrutiny on citizens running for office.

In addition to those issues, a ruling in favor of the travel ban could open the door for more policies which target ethnic or religious groups who seek to enter the US, which makes this case one of the most important decisions of the Court’s upcoming term.

Oral Arguments Don’t Show Clear Prediction

The Justices aggressively questioned both sides during oral arguments, which has made the outcome of this case more difficult to predict than usual; however, Justice Kennedy, the Court’s usual swing vote, seemed skeptical of judges second guessing national security decisions and that the ban was discriminatory (most Muslim countries are not included).  Other Justices, including Chief Justice John Roberts expressed concern about opening judicial review to campaign statements, but Justices Sotomayor and Kagan were dubious about the limited justification for the travel ban provided by the Government and seemed worried about future discriminatory policies.

Ultimately, the case has legal experts without a consistent opinion on the outcome; however, it is certain that the way the Court crafts its decision will not only impact the travel ban initiative, but the relationship between the executive and the judiciary more broadly.

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