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.

What You Need to Know about Trump’s Muslim Ban After SCOTUS

This Question & Answers page is designed to answer your questions in regard to Trump’s Muslim Ban 3.0 after the Supreme Court’s decision to uphold it on June 26th.

What has changed?

Unfortunately, not much. If you were impacted by the Muslim Ban last week then you are still impacted by it today. What has changed is how we are fighting the Muslim Ban. We have always focused on a dual strategy of legal challenges and legislative initiatives. That is why our sister organization, NIAC Action, will double-down with other allied organizations to lay the groundwork for legislative repeal of the Muslim Ban. We will win this fight but until that happens we will continue to provide you with guidance on the ban.

Who is still affected by the ban?

The issuance of immigrant visas (including “green card lottery” diversity visas) to nationals of Iran, Libya, Somalia, Syria, Yemen, and North Korea is suspended indefinitely. Permanent residence applications are not being processed for the listed countries. This means no immigrant visas will be issued or processed. The entry of nonimmigrants from Iran is also suspended, with the exception of student visa holders (F and M visas), or exchange visitor visas (J visas). B-1/B-2 nonimmigrant visas are suspended for nationals of Libya and Yemen. Certain Venezuelan government officials and their families are also barred from entry on B-1/B-2 visas.  No nonimmigrant visas will be issued to Syrians or North Koreans. Somalis are subject to additional scrutiny but remain eligible for nonimmigrant visas.

Who is not affected by the ban?

The ban does not apply to individuals from the included countries who have been granted asylum or are already admitted as refugees inside the US.

Iranians on F, M, and J visas should be subjected to standard visa issuance procedures and not affected by the Muslim Ban.

Certain nonimmigrants from Libya (except B-1/B-2 visas), Yemen (except B-1/B-2 visas) and Venezuela (except certain government officials and their families) will be permitted to enter.  

The suspension of entry will not apply to travelers with other travel documents such as a transportation letter or advance parole document.

Section 3 of the Proclamation allows for case-by-case waivers for individuals otherwise barred from entry when the following conditions are met:

  1. A foreign national demonstrates undue hardship.
  2. Their entry would not pose a threat to national security or public safety.
  3. Their entry is in the national interest.

In practice it remains unclear what particular cases actually qualify for a waiver and the issuance of one is highly unpredictable. More information is provided in the section on waivers.

If I have a multiple-entry visa can I travel outside the U.S. and return?

This is by far one of the most common questions that U.S. visa-holders from the countries included in the Muslim Ban ask. The short answer is “yes” but do so with caution. For example, if you have a valid multiple-entry F1 visa then you can travel outside of the U.S. and return. We have heard of Iranian students with multiple-entry F1 visas who visited Iran since Muslim Ban 3.0 took effect and then returned to their studies in the U.S. without any issues. However, it is important to remember that U.S. Customs and Border Patrol agents can deny you entry to the U.S. even if you have a valid visa. There is always a risk of being turned away at the border and this risk existed prior to the Muslim Ban but appears to have risen slightly.

If I have a multiple-entry student visa, what do I need to travel outside the U.S. and return?

Since the vast majority of individuals who ask this question hold student visas, the next question will address what an F1 multiple-entry visa holder needs to travel outside the U.S. and return.

  • Valid passport with 6 months left before expiration with a valid multiple-entry visa stamped in it.
  • Valid I-20 with a signature from your ISO advisor on page 2 that is less than one year old.
  • Proof of financial support (e.g., award letters, bank statements).
  • Proof of university enrollment (e.g., admission letter, university ID, class registration).
  • Form I-901.
  • Check with your international student services for their list of recommended documents before departing as this list is subject to change.

It is best to bring as much documentation as possible. Additionally, while it is unnecessary to document your reason for travel, it always helps to be able to provide proof where possible (e.g., a wedding invitation) in case you are subjected to secondary screening.

Did the Supreme Court clarify the waiver process?

No. One dissenting opinion, i.e., the opinion of a judge who disagreed with the majority ruling, argues that the available evidence suggests that the waiver process is a sham as so few are granted. This depiction is backed up by the testimonials of consular officers, who have described the waiver process as a “fraud.” As letters responding to Sen. Van Hollen’s queries have clarified, very few waivers have been granted – less than 2% of applicants from Muslim-majority countries under the ban received a waiver, almost all of which were granted after Congress requested information from the administration.

Section 3 of the Proclamation allows for case-by-case waivers for individuals otherwise barred from entry when the foreign national demonstrates (1) undue hardship, (2) that their entry would not pose a threat to national security, and (3) that their entry is in the national interest. It remains unclear what circumstances satisfy these criteria but a medical emergency of a close family member is one situation that could hypothetically qualify for a waiver. Some individuals with fiances and spouses who have been impacted by the Muslim Ban have incorrectly presumed that a close relationship with a US person on its own satisfies the waiver standard. This does not appear to be the case. NIAC Action will continue to challenge this in Congress. For now, we recommend that anyone who believes they have a compelling case for a waiver continue to apply for a visa. Individuals in the US can also ask their legislators to check in with the administration on individual visa applications, which could help secure a waiver for family members of friends.

Is this permanent? Will banned classes of Iranians never be able to come as a result of this Ban?

Muslim Ban 3.0 does not have a set expiration date and the Supreme Court decision held that “the President is not required to prescribe in advance a fixed end date for the entry restriction.” We are confident that we will eventually defeat the Muslim Ban and “extreme vetting” procedures legislatively. This will be done through NIAC Action’s support of political candidates who are dedicated to rescinding the ban, keeping the issue in the spotlight, and working with partner organizations and allied lawmakers on a legislative solution.

Will Green Card holders be affected?

Under the terms of the proclamation, entry suspensions will not apply to lawful permanent residents of the United States, commonly referred to as LPR’s or Green Card holders. However, green card applications are not being processed.

How does Muslim Ban 3.0 affect dual nationals?

Dual nationals who are traveling on a passport issued by a country other than the eight covered countries will not be affected. So if you are a citizen of an EU country, for example, and also hold an Iranian passport, as long as you are entering the US on a passport issued by the EU country you will not be affected by the proclamation. However, nationals of the seven banned countries under Muslim Ban 3.0 will still need a valid F, M, or J visa. Dual Iranian nationals with visas issued prior to October 18, 2017 will not have their visas revoked, but it remains to be seen whether they will be permitted to enter the United States, as the language of the proclamation is unclear on this point.

NIAC Outraged by Supreme Court Decision Upholding Muslim Ban

FOR IMMEDIATE RELEASE
Contact: Jamal Abdi
Phone: 202-386-6408
Email: jabdi@niacouncil.org

Washington, D.C. – The National Iranian American Council (NIAC) issued the following statement following today’s Supreme Court decision upholding Presidential Proclamation 9645, commonly referred to as Muslim Ban 3.0 in the case of Hawaii v. Trump: 

“The effort to end the Muslim Ban is far from over. We will do everything in our power to organize our community and collaborate with other communities to ensure that Trump’s shameful policy is repealed by Congress.

“The promise of a United States that is inclusive, diverse, tolerant, and free has been rendered hollow for millions of Muslims, Iranian Americans, and other impacted communities as a result of this outrageous decision. Having been failed by the President, the Congress, and now the Supreme Court, it is now up to the most powerful office in our democracy – the office of citizen – to rise to the occasion and elect representatives who have the political courage to repeal this policy that has cast a shadow over our nation.

“The Supreme Court has added Trump’s Muslim Ban to the list of American moral failures that future generations will lament. This travesty of justice is a far cry from the Supreme Court that struck down segregation and bans on same sex marriage. History will view this decision along with other outrageous decisions that upheld and solidified official government-sanctioned discrimination.”

“Donald Trump stared directly into a camera and boldly proclaimed that he would have a ‘total and complete shutdown of Muslims entering the United States’. He then worked assiduously to enact that ban. Members of Congress, including Speaker of the House Paul Ryan, and the future Vice President Mike Pence condemned issued full-throated rejections of a Muslim Ban or religious test on the campaign trail. However, when Donald Trump became President, spines weakened as the Republican Congress and establishment played defense for Trump’s bigotry.

“We have been betrayed by our elected officials. Rather than intervene and uphold their oaths to protect and defend the Constitution of the United States, the Republican Congress has not held a single hearing on the Ban. Legislation to repeal and defund the Ban has been introduced and endorsed by nearly every Democrat in Congress but has been blocked by the Republican majority. The basic values and freedoms enshrined in America’s constitution have been reduced to the most vile of partisanship. Lawmakers of both parties have an obligation to protect their constituents against unconstitutional exercises of power. Instead, GOP lawmakers have run interference for the President to abuse his office and destroy our country’s bedrock values. 

“The only solution now is to elect a new Congress that will repeal Trump’s Muslim Ban and stand up to this President’s egregious abuses of power. Today’s disappointing Supreme Court decision will only deepen the convictions of Americans on the right side of history, and will only reinforce the resolve of NIAC and other grassroots civil rights organizations to continue fighting for this country’s sacred principles.”

This is not over.

 ###

Supreme Court Hears Oral Argument on Muslim Ban

Today, the Supreme Court of the United States heard oral argument in the case of Trump v. Hawaii challenging the constitutionality of Presidential Proclamation 9645, otherwise known as Muslim Ban 3.0.

Americans and impacted communities have been fighting back against Donald Trump’s Muslim Ban for over a year, and today is the culmination of our collective efforts. By June of this year, we will learn whether the Supreme Court will allow a Muslim Ban to forever be enshrined into law as a shameful American moral and ethical blunder.

Lawyers on both sides argued their positions today on three key questions presented to the Court: First, whether the President’s travel ban is justiciable. In order for a case to be justiciable, there is a requirement that there be some existing controversy between the parties, that the case be neither premature or a case where the threat of injury has been removed, and that the case does not ask the court to make a determination of a political question. The Supreme Court also heard argument about whether the travel ban violates the Establishment Clause of the First Amendment to the U.S. Constitution.

The Solicitor general, Noel Francisco, arguing on behalf of the government relied heavily on the argument that there was a wide, multi-agency, international review conducted to determine which countries would be designated under the travel ban for failing to meet a baseline of information sharing, and added that the vast majority of Muslim countries were excluded from the ban. Justice Sotomayor pushed back early and asked if the government could represent that no other country that failed to meet the cooperation test was excluded from the travel restrictions. The government responded that Somalia and Iraq were excluded under the “tailored nature” of the ban, also making reference to Chad being taken off of the list of banned countries.

Justice Kagan joined in with a hypothetical of an “out-of-the-box kind of president” posed to the government: suppose a president is elected after a vehemently anti-semitic campaign where the candidate regularly disparaged Jews. The president then asked his staff to issue recommendations for security and what emerged was a travel ban on Israeli’s. The government responded that it was a tough hypothetical and he was not sure that this type of ban would survive rational basis scrutiny because of Israel being a close ally. Justice Kagan went on to say that this hypothetical, bearing a strong resemblance to President Trump, would not be about what is in the president’s heart, rather what the reasonable observer of the president’s conduct would think.

Justice Sotomayor pressed the government hard on the Kagan hypothetical questioning why the actions of the committee charged with finding a way to keep Jews out should not be subject to great suspicion and thorough review given that the committee is responsible to the president and they have been told what the outcome of their responsibility must be. Justice Sotomayor also eluded to the worldwide review report that served as the basis for the Presidential Proclamation and how it has been kept confidential and not been shared with either the litigants or the courts.

Justice Kennedy followed up on the hypothetical asking the government whether challengers, under that scenario, could bring claims under the Free Speech or Free Exercise Clauses, which the government conceded that they could.

The questioning later shifted to Trump’s campaign statements. The government asserted that the Presidential Proclamation is “very transparent” and that statements made by candidate Trump are “out of bounds” for consideration by the court. The government’s reasoning is that the taking of the oath as president marks a “fundamental transformation” from private citizen to public servant.

Justice Kennedy, widely considered a crucial swing vote, gave the government another hypothetical in which a candidate for mayor repeatedly made hateful statements, and took actions consistent with those statements once taking office. Justice Kennedy asks if those statements are irrelevant. The government again responds arguing that the actions taken by Trump are not a Muslim ban because the travel ban does not apply to the majority of the Muslim world and it was based on neutral criteria.

Justice Breyer shifted the questioning to the case-by-case waiver process and expressed skepticism that the number of individuals that have received waivers is enough to overcome the “real problem” of not having a good waiver process in place.

Neal Katyal argued next on behalf of Hawaii and began by saying that Congress has decided to reject nationality based bans before, opting to use a “carrot and stick” approach to reward countries that comply with requirements by fast-tracking entry. Katyal argued that in fact, the government has only identified a single problem, which is not individualized vetting but rather certain countries not cooperating.

Justice Alito questioned Katyal on the president’s authority under the current federal immigration law to exclude any alien or class of aliens whose presence would be deemed detrimental to the United States. Alito also asked if this Proclamation actually does anything to establish a new perpetual immigration policy for the United States. Katyal responded that this Proclamation is a perpetual, indefinite, open-ended ban with no sunset provision.

Justice Kennedy interjected saying that re-examination by the administration every 180 days in the form of a report submitted to the White House indicates a reassessment, adding “you want the President to say ‘I’m convinced in 6 months we are going to have a safe country?’” Justice Kennedy also quotes statutory language indicating he believes the president has broad latitude and authority in immigration policy.

Testing the outer limits of Katyal’s Establishment Clause theory, Justice Roberts posed another hypothetical: if the president’s advisors recommended an airstrike on Syria, would that violate the Establishment Clause because Syria is a Muslim-majority country and, therefore, anti-Muslim discrimination? Katyal pushed back arguing that this Proclamation was not introduced in the context of a pressing national security emergency like the hypothetical. In addition, Katyal stressed that the Establishment Clause is not at the heart of Hawaii’s position, but rather the flouting of Congressional authority in the context of immigration law. Arguing this point, Katyal said that if there are no limits to the president’s ability to prohibit the entry of any class of aliens, he could potentially ban software engineers from entering so as to protect the technology sector. Katyal argued that generally, the president can supplement congressional policy, but cannot completely supplant it.

Chief Justice Roberts also returned to the political rhetoric of the president from the campaign, promising a “total and complete shutdown of Muslims entering the United States.” Katyal argued that if President Trump had repudiated his campaign remarks, the Establishment Clause arguments would not exist, but the president has not repudiated; he has doubled down by complaining about his administration drafting a “watered down, politically correct version” to cure legal deficiencies, and retweeted anti-Muslim videos with captions like “Muslim migrant beats up Dutch boy on crutches!” and “Muslim Destroys a Statue of Virgin Mary!’

Justice Alito questioned how a reasonable observer could conclude that this was a Muslim Ban when only 8% of the world’s Muslims are impacted. Katyal rebuts by arguing that the point of focus should not be the 8% of the world’s Muslims, but the fact that 98% of the people affected are Muslim, or what he referred to as “religious gerrymandering.”

It becomes clear towards the end of the hearing that the Supreme Court’s decision may turn on whether it believes that the exceptions to the travel ban are substantive exceptions allowing individuals admission into the U.S., or whether they are merely “window dressing” for a broader categorical ban much different than those imposed by Presidents Carter and Reagan. Along these lines, Katyal directed the court’s attention to the case of a 10-year-old Yemeni girl with cerebral palsy who was denied medical entry into the United States. Justice Sotomayor questioned Mr. Francisco about the girl to which he responded that he was was not familiar with the case

Interestingly, the government revealed that to date, 430 exceptions (or case-by-case waivers) have been granted, though he stopped short of saying how many have been requested or rejected. Mr. Francisco also revealed that consular officers automatically check visa applications to see if they qualify for an exception/waiver. This is in direct contrast to what NIAC has heard from visa applicants who have received form letters and categorical denials of visas without being considered for waivers.

The Supreme Court will likely issue its decision by the end of June. In any event, other components of the broader Muslim Ban policy will remain no matter what the court decides. NIAC will continue to fight back against ‘extreme vetting’ and the sham waiver process in court, and on the Hill. Congress must immediately put an end to its shameful side-stepping and finally fulfill its duty to fully repeal this hateful and bigoted ban.