Supreme Court upholds travel ban

The Supreme Court upheld President Donald Trump’s travel ban Tuesday, ruling 5-4 that a proclamation Trump issued last September to impose new travel restrictions was constitutional and within the president’s statutory authority.

“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,” Chief Justice John Roberts wrote.

The ban has been enforced since December, following the Court’s decision to allow the administration to implement it while challenges played out in the courts. It applies to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen, with restrictions specific to each country. Chad was initially included, but was removed in April.

The latest restrictions were issued in September after two earlier versions of the ban were met with resistance in the courts. The current version was crafted more carefully than earlier versions. Roberts quoted some of the anti-Muslim statements made by the president in his opinion, but upheld the ban saying the proclamation was facially neutral in regard to religion, and was supported by a national security claim that he stated reflects “the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Tuesday’s ruling was not a surprise after the justices split on traditional liberal-conservative lines when hearing oral arguments in April. Joining Roberts in the majority were Justices Samuel Alito, Neil Gorsuch, Anthony Kennedy and Clarence Thomas. Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan dissented.

“Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” Sotomayor wrote in a dissenting opinion joined by Justice Ginsburg. “That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”

BAL Analysis: The Court’s ruling means that the existing travel restrictions will remain in effect unless the administration changes or lifts the ban. The Court remanded the case to a federal court in Hawaii for further proceedings consistent with the opinion issued today, which will likely result in the dismissal of the case. BAL will continue to monitor enforcement of the restrictions and will provide updates on any developments. An FAQ outlining the restrictions is available here.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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