WASHINGTON (Circa) — After the United States Supreme Court upheld President Donald Trump’s authority to bar immigration and travel from certain countries Tuesday, legal experts were unsurprised by the outcome but unsure what it may mean for other cases in which plaintiffs have used the president’s own words to challenge his administration’s policies.
The 5-4 opinion, authored by Chief Justice John Roberts, lifted an injunction imposed by a district court judge and upheld by the Ninth Circuit Court of Appeals. Justice Neil Gorsuch, who was appointed by Trump last year, sided with the majority.
Under the policy, travel to the U.S. from Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia is restricted to varying degrees due to concerns about the countries’ systems for sharing information about their nationals. Chad had initially been included on the list, but it was removed after improving its vetting procedures. The executive order also offered numerous reasons waivers may be issued on a case-by-case basis.
After Trump announced the original version of this policy last January, several states sued, alleging it was an attempt to implement the ban on Muslims the president promised during his campaign. They quoted some of Trump’s statements and tweets as proof of his intentions.
The White House has maintained the policy is driven by national security concerns, an assertion the majority of the court accepted. At a meeting with congressional Republicans Tuesday, Trump declared the ruling the “final word” on the travel ban policy.
“A tremendous victory for the American people and for our Constitution,” Trump said. “This is a great victory for our Constitution. We have to be tough and we have to be safe, and we have to be secure.”
The Roberts opinion makes clear that the court did not weigh the appropriateness of Trump’s comments or the effectiveness of the policy. It only addressed whether the president’s exercise of his authority to suspend the entry of persons from certain countries in this proclamation was lawful.
“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” the ruling stated. “But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
A short concurring opinion by Justice Anthony Kennedy hints at some concerns about how the executive branch wields its power and the government’s commitment to freedom of religion.
“Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise,” Kennedy wrote.
The proclamation the court considered was the third version of Trump’s travel ban policy. The first two had also been halted by lower court rulings. This iteration of the policy was ostensibly based on an extensive review by the Department of Homeland Security and the Department of State to determine which countries had sufficient vetting and data-sharing practices to ensure their residents do not pose a security threat.
Dissenting opinions laid out two objections to the majority’s reasoning. Justice Stephen Breyer, joined by Justice Elena Kagan, presented statistical and anecdotal evidence that suggests the order is not being implemented as written and some applicants for waivers are facing discrimination.
In the other dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, argued the policy is rooted in the religious bias exhibited in Trump’s many statements about wanting to ban Muslims and not the administration’s “façade of national security concerns.”
“Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” Sotomayor wrote. “That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals.”
While clearly a victory for the Trump administration, legal experts say the opinion is not quite the final word. The injunction was lifted and the case was remanded to the district court, where plaintiffs may still argue against the ban, but the likelihood of success is much lower.
“So long as the government has some other basis for doing this, to distinguish these people on a basis other than religion, it will be alright,” said John McGinnis, a professor of constitutional law at Northwestern University and co-author of “Originalism and the Good Constitution.”
According to Rick Su, an expert on immigration law at the University at Buffalo, Breyer’s dissent offers one potential path if litigants can prove the order is not being properly applied.
“The Supreme Court certainly said quite strongly there’s no case here,” he said. “They can go to trial…but presumably given the Supreme Court’s opinion, the trial would have to focus on something that isn’t just the legal issue.”
Daniel Epps, a professor at Washington University School of Law and co-host of the “First Mondays” podcast, also saw Breyer’s dissent as planting some seeds, but he said the majority opinion mostly settles the legal questions at hand.
“This opinion pretty conclusively resolves the merits of the legal argument,” he said. “There may be a little bit of wiggle room but…this sort of says this is done.”
Whether one agrees with the ruling or not, it hewed to the court’s past approach to such cases.
“All these questions are highly contestable and debatable, but there certainly is a long line of precedent in statements and opinions that suggests the presidential authority in this area is pretty strong,” said Epps, who once clerked for Justice Kennedy.
According to McGinnis, none of the justices seemed to dispute the premise that the president had the authority to issue this order under immigration laws. The courts are typically unwilling to question a president’s assertion of national security fears.
“Whatever statements the president made as a campaign matter, it doesn’t follow that the president as head of the government is acting for those reasons, not for legit reasons,” McGinnis said.
Based on the DHS review of various countries’ vetting procedures and the narrow restriction on travel from seven countries, only five of which have majority Muslim populations, only about 8 percent of the world’s Muslim population would be impacted.
“If its purpose was to ban Muslims from the country, it just doesn’t do that,” McGinnis said.
The legal ramifications of Tuesday’s ruling are not entirely certain. To an extent, it merely reaffirmed the executive branch’s existing authority to set immigration policy based on national security concerns.
“I think it breaks very little new law in the national security area at all,” McGinnis said. “In general, the court has very much deferred to the president in areas of national security, so long as there is rational basis.”
States suing the administration argued Trump’s use of that authority is unprecedented and differs from restrictions imposed by Presidents Ronald Reagan and Jimmy Carter.
“What is occurring with the president here, the plaintiffs argue, is there has never been a blanket exclusion of a certain group of foreign nationals,” said Karla McKanders, director of the Immigration Practice Clinic at Vanderbilt Law School, who filed amicus briefs in the case with her students. In siding with Trump, though, the ruling looks to the plain language of the statute and finds he does have this power.
The consequences of all this may depend on how President Trump reacts. Su suggested he may be emboldened to pursue more aggressive immigration restrictions. Given that Trump has cited national security to justify tariffs as well, he may be less concerned about legal challenges on trade too.
“Presumably, given the way the Supreme Court has interpreted this authorization, he may feel inclined to use national security powers in a very broad manner,” Su said.
The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!— Donald J. Trump (@realDonaldTrump) September 15, 2017
Although the court found Trump’s anti-Muslim campaign statements and tweets did not establish that this policy was based in religious animus, McGinnis stressed that the ruling does not appear to set a broader precedent for consideration of his comments.
“I think this holding is mostly about cases that involve national security,” he said. “I’m not saying it would succeed, but I think you could argue in other cases that don’t involve national security that you might take the president’s campaign statements more seriously.”
Many other legal actions against the Trump administration have quoted the president’s social media posts to dispute the validity and sincerity of his policies, so the question is certain to arise again.
“It certainly throws some cold water on the idea that the tweets are relevant, but it doesn’t resolve it for all time in all contexts,” Epps said.
Well, as predicted, the 9th Circuit did it again - Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.— Donald J. Trump (@realDonaldTrump) June 13, 2017
According to McKanders, the majority zeroed in on the justification presented in the proclamation and avoided looking past that.
“When you look at the majority opinion, they really work hard to stay away from the president’s statements,” she said.
In her dissent, Sotomayor pointed to a dissonance between this ruling and the majority’s finding in the Masterpiece Cakeshop case decided earlier this month, in which statements by members of the Colorado Civil Rights Commission were used to demonstrate hostility toward a Christian bakery owner.
“Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant,” Sotomayor wrote. “That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected.”
People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!— Donald J. Trump (@realDonaldTrump) June 5, 2017
In an opinion concurring with the majority, Justice Clarence Thomas railed against lower court judges who impose “universal injunctions” that apply nationwide. Such rulings have become increasingly common in recent decades, and he argued that kind of judicial power, which has stymied Democratic and Republican presidents, has no basis in the Constitution
“I am skeptical that district courts have the authority to enter universal injunctions,” Thomas wrote. “These injunctions did not emerge until a century and a half after the founding… If their popularity continues, this Court must address their legality.”
McGinnis expects the issue will soon end up before the court, and when it does, Thomas made his likely position in such a case pretty clear.
“The difficultly is plaintiffs seek out judges or districts they think will be sympathetic and that allows another kind of veto point on any president… It encourages essentially forum shopping,” McGinnis said.
What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?— Donald J. Trump (@realDonaldTrump) February 4, 2017
As states continue to challenge national policies, a Supreme Court standoff may be inevitable. However, Su noted that none of the other justices joined Thomas in his denunciation of such injunctions.
“I think there’s a reason why Thomas concurred by himself,” Su said. “It’s not entirely clear if the court is eager to tackle that particular issue.”