Skip to main content
×
×
Home

U.S. Supreme Court Upholds Presidential Proclamation Restricting Entry of Individuals from Covered Countries

Extract

On June 26, 2018, the U.S. Supreme Court upheld President Trump's most recent iteration of restrictions on entry to the United States by nationals from certain foreign countries. Following several rewrites of this travel ban, ensuing legal challenges, and lower court injunctions, the Court, in a five-to-four decision authored by Chief Justice Roberts, reversed the latest ruling of a lower court that had granted a partial preliminary injunction against the ban. Although acknowledging that there was considerable evidence tying the travel ban to bias against Muslims, the Supreme Court found that the plaintiffs were nonetheless unlikely to succeed either in their statutory claim that Trump lacked the authority to impose this ban or in their constitutional claim that the ban violated the Establishment Clause of the First Amendment. The Court accordingly reversed the lower court's injunction and remanded the case for further proceedings. The ruling, based on the Trump administration's asserted national security interest, leaves in place travel restrictions imposed on nationals of seven countries—Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen—only two of which are not Muslim-majority countries.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      U.S. Supreme Court Upholds Presidential Proclamation Restricting Entry of Individuals from Covered Countries
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      U.S. Supreme Court Upholds Presidential Proclamation Restricting Entry of Individuals from Covered Countries
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      U.S. Supreme Court Upholds Presidential Proclamation Restricting Entry of Individuals from Covered Countries
      Available formats
      ×
Copyright
References
Hide All

1 Trump v. Hawaii, 138 S. Ct. 2392, 2402–06, 2423 (2018).

2 Id. at 2406–07. For discussion of the three versions of the ban and of earlier legal proceedings relating to these versions, see Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 109 (2018); Daugirdas, Kristin & Mortenson, Julian Davis, Contemporary Practice of the United States, 111 AJIL 764 (2017).

3 Hawaii, 138 S. Ct. at 2415, 2417–18, 2423.

4 Id. at 2423.

5 Id. at 2405–06, 2420–23. Plaintiffs challenged the executive action only as applicable to the five Muslim-majority countries: Iran, Libya, Somalia, Syria, and Yemen. Id. at 2406. The proclamation varied the restrictions applicable to each of the seven countries, sometimes preventing the entry of all types of travelers and sometimes only the entry of certain types of visa holders. See id. at 2405. For Venezuela, the proclamation only applied to certain government officials and their families. Id. at 2406.

6 8 U.S.C. § 1182(f); Hawaii, 138 S. Ct. at 2415.

7 Hawaii, 138 S. Ct. at 2404–05 (describing the review process, whose results produced a list of countries of concern that overlapped considerably with the countries singled out in the travel ban); 2408–09 (quoting the statutory standard and deeming the review process sufficient to satisfy this standard).

8 Id. at 2413–14 (discussing Section 1152(a)(1)(A) of the INA).

9 Id. at 2414–15.

10 Id. at 2415.

11 Id. at 2419–22; U.S. Const. amend. I.

12 Id. at 2417–18 (discussing these statements); see also id. at 2435–37 (Sotomayor, J., dissenting) (describing these statements at more length).

13 Hawaii, 138 S. Ct. at 2418.

14 Id. at 2418, 2420 (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977)).

15 Id. at 2420.

16 Id. at 2421.

17 Id.

18 Id. at 2422–23. The waiver program would allow individuals from covered countries to enter the United States on a case-by-case basis. Id.

19 Id. at 2424 (Kennedy, J., concurring).

20 Id. at 2424–25 (Thomas, J., concurring).

21 Id. at 2433 (Sotomayor, J., dissenting).

22 Id. at 2438 (Sotomayor, J., dissenting) (citation omitted).

23 Id. at 2442 (Sotomayor, J., dissenting) (also concluding that the travel ban's inclusion of North Korea and Venezuela was done to “evade criticism or legal consequences for the Proclamation's otherwise clear targeting of Muslims”). Sotomayor likened the Court's decision to Korematsu v. United States, 323 U.S. 214 (1994), which had upheld the internment of U.S. citizens of Japanese dissent during World War II. Id. at 2448 (Sotomayor, J., dissenting). Responding to this point, the Court stated that “Korematsu has nothing to do with this case” and described Korematsu as “gravely wrong the day it was decided.” Id. at 2423.

24 Id. at 2429–30 (Breyer, J., dissenting).

25 Id. at 2430 (Breyer, J., dissenting).

26 Id. at 2431–33 (Breyer, J., dissenting).

27 Trump, Donald J., Statement on the United States Supreme Court Ruling in Trump v. Hawaii, 2018 Daily Comp. Pres. Doc. 455 (June 26, 2018); see also U.S. Dep't of Homeland Security Press Release, DHS Statement on U.S. Supreme Court Decision on the President's Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States (June 26, 2017), at https://www.dhs.gov/news/2017/06/26/dhs-statement-us-supreme-court-decision-president-s-executive-order-protecting [https://perma.cc/7H6Z-A37S] (announcing that the decision would allow the agency to pursue “rational and necessary steps to protect [the United States] from persons looking to enter and potentially do harm”).

28 E.g., Amnesty International USA, Amnesty International USA Reaction to Supreme Court Ruling on Muslim Ban (June 26, 2018), at https://www.amnestyusa.org/press-releases/amnesty-international-usa-reaction-to-supreme-court-ruling-on-muslim-ban.

29 The Latest: Group: Don't Base Immigration on Race, Religion, AP (June 26, 2018), at https://www.apnews.com/019fb806a05c49eab32cb1ed951af363. As Hawaii's former attorney general, Chin initially led the challenge against the executive actions. Id.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

American Journal of International Law
  • ISSN: 0002-9300
  • EISSN: 2161-7953
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed