On January 27, 2017, within a week of his inauguration, the American President Donald Trump tried to fulfill a very popular election promise to implement a “total and complete shutdown of Muslims entering the United States.” That was one of his famous promises that he made during his campaign. This was all part of his design to “Make America Great Again.” He tried to fulfill this promise by issuing Proclamation 13769 that was swiftly turfed out by lower courts. Instead of appealing those decisions Trump came back with a new Proclamation 9645 in September 2017 that he himself called a “watered-down version” of his original proclamation that he actually preferred.
To those of us who always believed the United States was the epitome of religious freedom this was shocking. A number of Human Rights groups immediately launched legal action to stop the second Presidential directive as well and the case ultimately arrived at the U.S. Supreme Court. There were 9 judges who heard the appeal and 7 of them upheld the President’s proclamation. While this surprised many, the opinions of the court are lengthy and complicated, and many judges weighed in, but I want to comment on the decision of the American Chief Justice Roberts speaking for a large majority of the court and an interesting dissent delivered by Justice Sotomayor. I will comment first on the decision of the majority and then the dissent.
Chief Justice Roberts pointed out that the proclamation claims to be seeking to improve vetting procedures for foreign nationals travelling to the U.S. by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat. The American agencies developed a “baseline” for the information they required in order to confirm the identity of individuals seeking entry into the US and to determine whether those individuals posed a security threat.
The American agencies determined that 16 countries had deficient information sharing practices and presented security concerns as a result. During a 50-day period in which Homeland Security made diplomatic efforts to encourage foreign governments to improve their practices it determined that 8 countries remained deficient. Eventually Trump determined that 1 country had improved enough to be taken off the list.
The Proclamation placed varying entry restrictions on the nationals of 8 foreign states whose systems for managing and sharing information Trump deemed inadequate. Most of these countries were countries in which a majority of people were members of the Islamic faith.
The President’s directive caused all kinds of chaos and harm to people around the world since it was implemented without warning, catching travelers and their families unawares and stranded.
The State of Hawaii and 3 individual Americans with foreign relatives who were prohibited from entering the US, argued that the Proclamation violated the Immigration and Nationality Act (INA) and the Establishment Clause of the Constitution which prohibits the government from establishing or favoring any religion.
The majority decision was actually fairly straightforward. It held that the President is given broad discretionary authority to suspend the entry of “aliens” into the US. Courts should defer to the President who is given the power to suspend entry and for how long and under what conditions. The word “aliens” may seem harsh, but that it the wording in INA. It vests the President with “ample power” to do what he did.
The Supreme court noted that President Trump had first ordered Homeland Security and other governmental agencies to conduct comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline and then based on that review he found that restricting aliens who could not be vetted adequately by American officials on account of failures of their own government, was in the national interest. The Proclamation made it clear that the conditional restrictions would remain in force onlyso long as necessary to address the identified inadequacies. Finally, the class of aliens identified were a group of people linked by nationalityand not religion.
The majority of the Supreme Court rejected the claim that the President’s statements showed that the President’s stated concerns about vetting protocols and national security were only pretexts for discriminating against Muslims. The Proclamation was expressly based on legitimate purposes so the court should not interfere with the President’s legitimate exercise of his powers under INA. It really was that simple in the view of the majority of the court.
All of that seems simple and almost unassailable. One might wonder what all the fuss was about. But wait until you hear about the opinion of the dissent. I will cover that in my next post.