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The U.S. Supreme Court on Tuesday upheld President Donald Trump’s travel ban in a narrow 5 to 4 decision that split along partisan lines with the conservative justices in the majority.
The ruling affirmed that the president has wide-ranging authority over when and under what circumstances foreign nationals can enter the country.
Chief Justice John Roberts, writing for the majority, said as much when he wrote that Trump’s executive order, which targeted mostly Muslim-majority countries, was “squarely within the scope of Presidential authority” in federal immigration law.
Roberts also wrote that the Trump administration provided a “sufficient national security justification” when implementing the travel restrictions.
The majority focused on the plain language of the executive order — which Roberts described as “facially neutral” — rather than on Trump’s incendiary rhetoric about banning Muslims from entering the country, something opponents argued amounted to unconstitutional religious discrimination.
“The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” Roberts wrote. “The text says nothing about religion.”
Roberts also said: “We express no view on the soundness of the policy.”
Hawaii was at the forefront of the legal battle with the Trump administration over its travel ban, and on Tuesday Gov. David Ige expressed his dismay at the ruling in a statement indicating he will continue to push back against future efforts that specifically target Muslims.
“Many of Hawaiʻi’s families vividly remember experiencing unjust discrimination on the basis of race and national origin,” Ige said.
“Our state will continue to be a check on this president’s irrational fear of travelers from predominantly Muslim countries. Sadly, the Supreme Court’s decision does not reflect the American values of inclusion, freedom, and opportunity. And it does not reflect the Aloha Spirit that Hawaii exemplifies.”
President Trump, meanwhile, immediately took to Twitter to celebrate the ruling. The White House also released a statement in which he said the decision was “a tremendous victory for the American People and the Constitution.”
SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!
— Donald J. Trump (@realDonaldTrump) June 26, 2018
Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Neil Gorsuch, who was appointed to the court by Trump in 2017, joined Roberts in the majority, with Kennedy and Thomas writing concurring opinions.
Liberal justices Stephen Breyer and Sonia Sotomayor each wrote dissents, with Elena Kagan signing on with Breyer and Ruth Bader Ginsburg joining Sotomayor. In both opinions the justices wrote that they believed the travel ban was a clear iteration of religious bias against Muslims.
In a strongly worded rebuke of her conservative colleagues, Sotomayor said Trump’s travel ban “now masquerades behind a façade of national-security concerns.”
Those in the majority, she said, have been “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
Sotomayor evoked the court’s 1944 Korematusu v. United States decision, in which the justices at the time upheld President Franklin D. Roosevelt’s executive order that allowed for Japanese-American internment during World War II.
Opponents of Trump’s travel ban often referred to the case. Even Fred Korematsu’s daughter, Karen, filed an amicus brief with the high court to voice her opposition.
“Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justices warned of that decision’s harm to our constitutional fabric,” Sotomayor said.
“This formal repudiation of a shameful precedent is laudable and long overdue.” — Sonia Sotomayor
Roberts aimed to undercut that criticism in the majority opinion, saying the high court’s previous ruling “has nothing to do with this case.”
“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority,” Roberts wrote. “But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
Roberts went on to say that the 1944 Korematsu ruling was “gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in the law under the Constitution.’”
Sotomayor nodded to the concession in her dissent while sticking to her convictions.
“This formal repudiation of a shameful precedent is laudable and long overdue,” she wrote. “But it does not make the majority’s decision here acceptable or right.”
The case stems from Trump’s various attempts to block people from seven Muslim-majority countries from entering the U.S.
His first executive order, issued on Jan. 27, 2017, targeted travelers from Iran, Iraq, Libya, Somalia, Sudan and Yemen. People from Syria faced even harsher restrictions, including an indefinite ban on refugees.
The order sparked nationwide protests at airports and legal action, including from state governments and the American Civil Liberties Union.
Hawaii — where one in five residents is foreign-born — was one of the first states to mount a legal challenge, and has been at the forefront ever since.
Opponents of the ban, including Hawaii, have argued that the order and its subsequent iterations were a violation of immigration law and amounted to religious discrimination.
Trump and his administration have held that the ban was necessary for national security.
The lower courts blocked each version of the ban, including the latest one which targeted Iran, Libya, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. But the conservative-leaning Supreme Court allowed the ban to take effect while the legal challenges played out.
“We’re in the middle of nothing short of a battle for our nation’s conscience and soul.” — Doug Chin
During oral arguments in April, the Supreme Court justices signaled their support for the policy, indicating that the president has broad power when it comes to allowing foreigners into the country.
Doug Chin was Hawaii’s attorney general when the state filed its legal challenges against Trump’s travel ban. Now as lieutenant governor and a candidate for Congress he said it’s important for him and others who are concerned with civil rights to remain diligent.
“I took on this fight precisely because it wasn’t going to be easy,” Chin said. “We’re in the middle of nothing short of a battle for our nation’s conscience and soul.”
Chin said he wasn’t surprised by the split decision, and indeed anticipated it.
He said he takes heart in the fact that the four liberal justices found that Trump’s travel ban was both illegal and unconstitutional. And while the majority decision can be demoralizing, he said it can serve as a catalyst for future political action both at the polls and in Congress.
“I hurt today for all those who suffered and will continue to suffer as Donald Trump pursues his agenda that’s based on hate and division,” Chin said. “What this really boils down to is making sure that we speak up against every unconstitutional, illegal or un-American value that we see coming from Washington, D.C., right now.”
The court’s ruling also troubled U.S. Sen. Mazie Hirono, herself an immigrant from Japan. Hirono was in the court during oral arguments in April, and has been an outspoken critic of Trump and his policies that, in her view, target minorities.
On Tuesday, she addressed protestors who had gathered near the Supreme Court steps to speak out against the majority ruling. Her message was not pleasant.
In an interview with Civil Beat, she said it was a “dark day for our country.” She was critical of the court’s narrow view of the case in that the majority seemed to ignore Trump’s many public statements about his intention to ban Muslims from the country.
“They did not pay any attention to any of the comments that he made,” she said. “We know that he’s anti-immigrant as far as brown, yellow and black people are concerned. I’m sure Stephen Miller and others are already figuring out other executive orders he can sign for ‘national security.’”
Hirono has become a spokeswoman of sorts for the partisan fight for control of the federal judiciary, and on Tuesday the Hawaii senator didn’t hold back when she said the high court’s decision had everything to do with the justices’ political leanings.
She said that if the Republican-controlled Senate had given President Barack Obama’s Supreme Court nominee, Merrick Garland, a confirmation hearing instead of blocking him for a year until a Republican was in the White House, that the outcome would have been different.
Instead, she said, Gorsuch, who was Trump’s pick to replace the late Antonin Scalia, was able to swing the court to the right on this and other high stakes decisions.
“The partisanship was very much aided and abetted by (Senate Majority Leader) Mitch McConnell,” Hirono said.
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