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Donald Trump’s travel ban now appears to be a permanent part of US immigration policy.
On Tuesday, in an opinion written by Chief Justice John Roberts, the Supreme Court ruled for the government in Trump v. Hawaii, the lawsuit over the current version of the travel ban — the third that the Trump administration has issued since it made its first effort in January 2017.
In a 5-4 decision (the court’s liberals dissented), Roberts reversed the ruling of the 9th Circuit Court that had attempted to put the travel ban on hold — a ruling that the Supreme Court had already kept from going into effect while it reviewed the case — and sent the case back to the 9th Circuit to reconsider.
The current version, which prevents some (or all) immigrants, refugees, and visa holders from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen from entering the US, has been in full effect since early December (thanks to an earlier Supreme Court ruling). For a full explanation of how the case has developed, see Vox’s Trump v. Hawaii explainer.
The existing ban is much narrower than Trump’s first attempts — thanks in part to early court defeats in 2017, it only applies to certain categories of visa applicants (depending on country) and theoretically allows for would-be immigrants to apply for waivers.
But it’s also designed to be permanent.
In theory, the legal fight over the travel ban isn’t over, since the Supreme Court is still instructing the 9th Circuit to rule on the merits of the ban. But by decreeing that the legal challenges to the ban aren’t “likely to succeed” on the merits, the court has just made it extremely difficult for the ban to get struck down in future.
Legally, the court’s decision rested on two conclusions.
First of all, it found that indefinitely banning people from particular countries was a lawful use of the president’s power under the Immigration and Nationality Act, which allows the executive branch to suspend the entry of a “class” of people if the government “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”
“The language of §1182(f) is clear,” Roberts wrote, “and the Proclamation does not exceed any textual limit on the President’s authority.”
Hawaii and the other states challenging the ban argued that because another line in the same section of the law prevents the government from discriminating in immigration policy based on nationality, it wasn’t legal to use the suspension provision against whole countries’ worth of entrants.
Second of all, the court found that the travel ban did not violate the First Amendment by denying freedom of religion to Muslims. In other words, it found that the travel ban was not, in fact, a Muslim ban.
The central question over the 17 months of litigation over various iterations of the travel ban has been about whether Trump’s December 2015 campaign promise of a “total and complete shutdown of Muslims” entering the United States (which the Trump administration has all but acknowledged would be unconstitutional) is still at the heart of the travel ban. But because he didn’t make that statement as president, the administration argued, it shouldn’t count against him.
The Supreme Court has generally deferred to the executive branch, especially on immigration, if the government can produce a rationale for the policy that isn’t discriminatory.
The Trump administration argued that the third version of the travel ban was a well-thought-through process solely based on security concerns about information-sharing. The Supreme Court bought the argument.
