This morning, the Supreme Court ruled to uphold Donald Trump’s travel ban, knocking down a decision in the ninth-circuit which found that the ban violated immigration law and the Establishment Clause of the US Constitution.
The decision, a hallmark 5-4 vote, found that the ban is “squarely within the scope of Presidential authority.”
Essentially, the Supreme Court ruled that the repeated remarks by Donald Trump and his surrogates– expressing the ban was born out of a desire to stop Muslims from entering the country– did not override his authority to restrict immigration, and that the ban was not born of religious bias.
The logic works like this: If Trump’s ban was intended to restrict Muslims from entering the country due to bias, then that would violate the First Amendment and our current immigration law. But the president is allowed to deny entry to people who “would be detrimental to the interests of the United States.”
But here are the facts. In December of 2015, following the San Bernardino shooting, Trump announced through a campaign press release that he would be “calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” In January of 2017, Trump signed into effect the first iteration of this Muslim Ban, putting a temporary halt to all immigration from 7 majority Muslim countries around the world (and an indefinite ban on Syrian refugees). There is no separating the evolution of this Muslim ban from its islamophobic roots, and the islamophobic institutions and administration that put it forward.
The Trump administration has tried three different versions of the travel ban, all of which were most struck down by different federal courts as unconstitutional. The latest iteration of the ban, now upheld by the Supreme Court, excluded permanent residents, allowed waivers to be made for individual cases, and added in two countries, Venezuela and North Korea, that do not have Muslim majorities – a move that was criticized as a bid to bolster its claims that the ban was not intended to target Muslims.
Since the new iteration of the ban allows waivers for specific individuals, it’s seen as strengthening the vetting system, not a block on an entire nationality.
Justice Stephen Breyer, in his dissent, pointed out that these waivers haven’t really been used much. Most of the countries on the list are banned from applying for most visas, with student visas being the main exception, but the administration isn’t granting many, he wrote – only 258 from four of the Muslim countries in the first three months of this year.
Justice Sonia Sotomayor wrote a stinging dissent, which was joined by Justice Ruth Bader Ginsburg, saying that the court’s decision Tuesday “fails to safeguard that fundamental principle” of religious neutrality found in the First Amendment.
“It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns,” Justice Sotomayor wrote. “But this repackaging does little to cleanse [the latest travel ban] of the appearance of discrimination that the President’s words have created.”