Protests held against the Trump administration’s travel ban outside the John F. Kennedy Airport. (Photographer: Kholood Eid/Bloomberg) 

Supreme Court Upholds Trump Travel Ban, Giving President Win on Signature Issue

(Bloomberg) -- A divided U.S. Supreme Court upheld President Donald Trump’s travel ban, rejecting contentions that he targeted Muslims and giving him a legal and political victory on a controversy that helped define his presidency.

The 5-4 ruling Tuesday ends a legal saga that dates to the beginning of the Trump presidency and helped establish his assertive, divisive leadership style. The decision bolsters the president’s already broad control over the nation’s borders.

Trump hailed the ruling as a "tremendous victory" during a White House meeting with senators. "The Supreme Court has upheld the clear authority of the president to defend the national security of the United States," he said in a statement issued earlier. "In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country."

A Hawaii-led group of challengers said the policy was the embodiment of Trump’s December 2015 campaign call for a "total and complete shutdown of Muslims entering the United States." Writing for the court, Chief Justice John Roberts said those comments weren’t enough to strike down the policy.

"The issue before us is not whether to denounce the statements," Roberts wrote. "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."

The ruling was one of the last of the court’s nine-month term. It will issue its final opinions -- including a fight over mandatory union fees paid by public-sector workers -- Wednesday.

‘Ignoring the Facts’

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. Trump’s Supreme Court appointee, Neil Gorsuch, joined fellow conservatives Clarence Thomas, Anthony Kennedy and Samuel Alito in the majority.

Writing for herself and Ginsburg, Sotomayor accused the majority of "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, many of whom are United States citizens."

The ban in its current form affects seven countries, five of them predominantly Muslim, and indefinitely bars more than 150 million people from entering the country.

The first version of the ban triggered airport chaos and protests when Trump put it in place a week after taking office last year. Judges quickly blocked that version, but subsequent changes made the policy more palatable to the courts.

Roberts said the president has "broad discretion" under the nation’s immigration laws to block foreigners from entering the country. He noted that the current ban was put in place only after national security officials reviewed vetting procedures on a country-by-country basis.

"The president lawfully exercised that discretion based on his findings -- following a worldwide, multi-agency review -- that entry of the covered aliens would be detrimental to the national interest," Roberts wrote.

Japanese Internment

Sotomayor pointed to "stark parallels" with the internment of Japanese-Americans during World War II, a policy allowed by the court in a 1944 ruling known as Korematsu.

"As here, the government invoked an ill-defined national security threat to justify an exclusionary policy of sweeping proportion," she wrote. "As here, the exclusion order was rooted in dangerous stereotypes about a particular group’s supposed inability to assimilate and desire to harm the United States."

Roberts said Korematsu "has nothing to do" with the travel ban case.

"It is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission," Roberts wrote.

Breaking new ground, he said the Korematsu decision, which has never been formally overruled, "was gravely wrong the day it was decided, has been overruled in the court of history, and -- to be clear -- has no place in law under the Constitution.”

Kennedy Opinion

In a separate opinion, Kennedy, without mentioning Trump, said the court’s ruling didn’t insulate government officials from a duty to respect religious and speech rights.

"It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs," Kennedy wrote. "An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts."

Democrats and civil-rights groups decried the ruling.

"The Constitution and the Bill of Rights just did not work," said Omar Jadwat of the American Civil Liberties Union, which helped challenge the ban. "This blatantly discriminatory ban has been allowed to continue despite what’s clear to anybody, anybody who cares to look: that this is just in the most basic way contrary to what we as a nation stand for."

Attorney Neal Katyal, who argued the case for Hawaii, said he was disappointed by the ruling, though he was heartened that federal courts had blocked earlier versions of the travel ban.

"As the Supreme Court has repeatedly said, not everything that is constitutional is good policy," Katyal said. "The travel ban is atrocious policy and makes us less safe and undermines our American ideals."

‘Backward and Un-American’

Senate Democratic leader Chuck Schumer of New York called the ban "a backward and un-American policy that fails to improve our national security.”

Senate Majority Leader Mitch McConnell, a Republican from Kentucky, implicitly took credit for the decision. Moments after the court released the ruling, McConnell’s campaign tweeted a picture of him shaking hands with Gorsuch, whose appointment was possible only because the Kentucky Republican blocked former President Barack Obama’s nomination of Merrick Garland to fill a vacancy in 2016.

Attorney General Jeff Sessions said the ruling "is critical to ensuring the continued authority of President Trump -- and all future presidents -- to protect the American people."

Breyer wrote a separate dissent that was less pointed than Sotomayor’s. Writing for himself and Kagan, Breyer said the Trump policy’s case-by-case waiver system so far was inadequate to deal with potentially thousands of cases that qualify. He said, "to my knowledge," the government hasn’t provided any guidance to consular officers about when to grant waivers.

During argument, U.S. Solicitor General Noel Francisco told the court that more than 400 people had been cleared for waiver, though it wasn’t clear how many people had actually received visas.

The case is Trump v. Hawaii, 17-965.

©2018 Bloomberg L.P.

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