Supreme Court Upholds Travel Ban

By Karlie Dunsky, Tejas Shah, and John Swinney - Franczek Radelet P.C.

June 26, 2018

In a 5-4 decision, the Supreme Court held President Donald Trump’s travel restrictions on individuals from predominantly Muslim nations to be lawful. The State of Hawaii, individual plaintiffs, and the Muslim Association of Hawaii had challenged the travel restrictions, often referred to as the “travel ban,” and argued that they violated the Immigration and Nationality Act (“INA”) and the Establishment Clause of the United States Constitution. The District Court in Hawaii granted a preliminary nationwide injunction barring enforcement of the travel ban, and the U.S. Court of Appeals for the 9th Circuit, the federal appeals court covering the West Coast and Hawaii, affirmed the injunction. The Supreme Court reversed the appellate court’s decision and remanded this matter, resulting continued application of these restrictions and further consideration of the lawsuit by lower courts in light of the Supreme Court’s reasoning.

The Court based its decision on the broad delegation of authority by a provision of the Immigration and Nationality Act (“INA”) which permits the President to suspend the entry of aliens to the United States when admission of such aliens “would be detrimental to the interests of the United States.” The Court held that the actions of President Trump fell squarely within his authority and did not violate the INA. Writing for the conservative majority, Chief Justice John Roberts stated that “[t]he entry suspension is an act that is well within executive authority and could have been taken by any other President.”

Further, the Court held that the President’s travel restriction did not violate the Establishment Clause of the Constitution. The Establishment Clause prohibits the government from passing any law that, among other things, favors one religion over another. In this case, plaintiffs argued that this travel restriction singled out Muslim countries and disfavored them compared to non-Muslim countries.  The Court, however, applied a low standard of review, known as “rational basis review,” to find that the travel restriction could reasonably relate to a legitimate state interest of national security. Further, the Court noted that the restrictions were not clearly passed for a discriminatory purpose. Although the Court stated that it would not comment on the soundness of the policy, it found that because there was a plausible legitimate state interest supported by the restriction, the policy was likely not unconstitutional.

Importantly, this decision does not, necessarily, mark the end of this case. The case will now be sent back to the lower courts to determine whether judicial proceedings may continue against the travel ban, given the deference that must be accorded to the President in conducting foreign affairs and in light of the Supreme Court’s decision here. In a concurring opinion, Justice Anthony Kennedy noted that there may be times when governmental action may be reviewable by the courts to determine whether the action is improperly motivated and stressed the importance of upholding the constitutional promise of free exercise of religion and the necessity of government officials to adhere to constitutional guarantees. Justices Breyer and Sotomayor filed dissenting opinions, in which Justices Elena Kagan and Ruth Bader Ginsburg respectively joined.

Employers and educational institutions should be aware that this travel restriction could impact them in several ways. Most notably, employees and students from the countries affected by the travel restriction are likely to feel the biggest impact and may want to avoid international travel. The travel ban does provide certain fact-specific exemptions for individuals who would otherwise be impacted by the restrictions, such as those needing urgent medical care. However, so far, these waivers appear to be granted only sparingly. We will continue monitoring the status of this travel restriction and will provide updates as they become available.