June 27, 2018

Analyzing the Supreme Court Decision on Trump’s Muslim Ban

The Supreme Court’s Muslim Ban opinion can be divided into three parts: (1) the majority opinion, also known as the opinion of the Court; (2) concurring opinions that support the opinion of the Court but wish to expand upon it; and (3) the dissenting opinions that disagree with the opinion of the Court. The opinion of the Court was delivered by Justice Roberts and joined by Justices Kennedy, Thomas, Alito, and Gorsuch to uphold the latest iteration of the Muslim Ban. This means that the case returns to the lower court for additional litigation but the Muslim Ban will remain in effect for the foreseeable future. The summary below is intended to provide a basic outline of the decision for a reader unfamiliar with law and some of the Court’s more complex arguments have been simplified for clarity.

  • Summary of the Majority Opinion:  It is within President Trump’s discretion to suspend the entry of aliens to the US if he determines their entry would be detrimental to US interests or if the policy is plausibly related to the Government’s stated objective which in this case is to protect the country’s national security. Therefore, Proclamation 9645 is lawful.
    • The President has broad discretion under the Immigration and Nationality Act (INA) to suspend the entry of aliens into the US. The INA §1182(f) gives the President “ample power” to restrict entry of aliens if their entry “would be detrimental to the interests of the United States.”
    • The President is also not required to provide an end date for his suspension of entry and the existing vetting procedures do not address the failure of particular high-risk countries to provide reliable information.
    • The INA distinguishes between admissibility, i.e. general eligibility to receive a visa, and allocation of immigrant visas. It is forbidden to discriminate based on nationality in the case of visa issuances but the President is permitted to restrict eligibility in the first place on the basis of nationality.
    • When the Court strikes down a policy under rational-basis scrutiny it looks to see if the policy is divorced from any factual basis and this is not the case for the Proclamation because the Muslim-majority countries included in it were previously designated and a worldwide review process was undertaken by the Trump administration.
    • The majority addressed the dissent’s reference to Korematsu v. United States, a Supreme Court case from 1944 that upheld the policy of placing Japanese Americans in internment camps, and determined that the set of facts between the two cases are entirely different. However, the Court took the opportunity to formally reject the Korematsu decision.
  • Summary of Dissenting Opinions: Proclamation 9645 should fail the rational-basis scrutiny test because it is not rooted in facts and there is an extensive record of anti-Muslim animus among President Trump and others in his administration involved in the implementation of the Muslim Ban. Additionally, publicly available information suggests that the waiver process has not been applied adequately which further places the intent of the Muslim Ban into question because a significant number of individuals who do not pose a national security risk to the US should qualify for a waiver. Lastly, the record itself does not indicate that there is any evidence that the Muslim Ban was designed based on national security concerns.
    • The dissent written by Justice Breyer and joined by Justice Kagan rejects the majority opinion that Proclamation 9645 was not significantly affected by animus against Muslims. It places significant emphasis on whether the waiver provision of the ban is being implemented fairly and Justice Breyer writes “How could the Government successfully claim that the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion.” Justice Breyer expressed serious concern that the waiver provision is not being applied adequately both due to the lack of guidance provided to consular offices and based on publicly available information that shows low waiver issuances and dwindling visas even for categories that are permitted under the ban such as student visas.
    • Justice Sotomayor wrote a separate dissent and was joined by Justice Ginsburg. It opens by asserting that “based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.” The Establishment Clause of the Constitution forbids the government from favoring or disfavoring any one religion. Justice Sotomayor argued that the background of the ban is enough to convince a reasonable observer that it was enacted for the purpose of disfavoring Muslims. She accused the majority of downplaying the full record of President Trump’s hostility toward Muslims to simply gloss over a few of his most egregious anti-Muslim statements and then fail to address them in its analysis. The dissent questions the majority’s use of rational-basis scrutiny as a standard of review rather than heightened scrutiny which it argues should be applied in the case of a policy involving discrimination on the basis of religion.
    • Justice Sotomayor contends, however, that even under rational-basis scrutiny, the Muslim Ban is unconstitutional because it is divorced from any factual context that could discern a relationship to a legitimate state interest. She asserts that the worldwide review process was conducted by officials who themselves have expressed hostility toward Muslims and the inclusion of North Korea and Venezuela in the ban was intended “precisely so the Executive Branch could evade criticism or legal consequences for the Proclamation’s otherwise clear targeting of Muslims.” Furthermore, former high-ranking national security officials have indicated that the ban does not enhance the security of the US and Congress has already erected a statutory scheme that adequately protects national security interests.
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