Trump’s Travel Ban: What the Supreme Court Will Do

by: The Knowledge Group

May 01, 2018


Is the Supreme Court, in Trump v. Hawaii, poised to uphold President Trump’s travel ban?

Hawaii is one of the entities that have challenged the Executive Order, which is ostensibly designed to avert Islamic militant attacks.

Hawaii’s lieutenant governor, Doug Chin, attended the Supreme Court hearing in a show of committed opposition to the order, explaining that Hawaiian families are suffering separations under the U.S. ban on travel from several Muslim-majority countries.

Lower courts have held three different variations of the ban unconstitutional. The Fourth Circuit decided the ban “second-guesses” U.S. principles of “religious freedom and tolerance.” The Ninth Circuit pointed out that no one from the listed countries has ever carried out an attack here.

But with a Supreme Court that has a 5-4 conservative majority, Trump seems poised to prevail in its decision, which will come out in late June. This means the most recent ban will stand, barring entry to people from five Muslim-majority countries, plus Venezuela and North Korea.

Double-Edged Doctrine: Separation of Powers

Kennedy — who, like Roberts, could swing the vote — sounds ready to give the ban the benefit of the doubt, pointing to its required, twice-yearly reports that could result in deletion of a listed county, and observing that fluidity in the ban is already evident in Trump’s changes to the list of barred nationalities.

The court’s discussion included plenty of nods to the separation of powers doctrine, indicating that the court’s holding could rest heavily on deference to the executive branch in matters of national security. Justice Roberts seems hesitant to second-guess the president; after all, could Trump next be restricted from making military strikes on Syria or anywhere Muslim majorities exist?

Trump’s Supreme Court appointee, Neil Gorsuch, questioned why the legal challenges to the ban even made their way into hearings in the lower courts. Still, conservative judges could decide against the ban, by invoking separation of powers from another angle. Congress put a clear nondiscrimination provision in the Immigration and Nationality Act of 1965 to prevent discrimination based on nationality.

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