The Supreme Court agreed Friday to decide whether President Trump has the legal power to bar tens of thousands of visitors and immigrants from several mostly Muslim nations from entering this country.
The court’s ruling could be one of its most significant pronouncements on the chief executive’s power, acting on his own, to decide who may come to the United States.
The legal fight over Trump’s travel ban has simmered through his first year in office. At the end of his first week in the White House, Trump signed a hastily crafted order that disrupted travel plans across the globe, triggered protests at airports across the nation and spurred a series of lawsuits.
Since then, federal judges in Hawaii, Maryland and Washington state have issued rulings to block Trump’s order, and those decisions have been repeatedly upheld by the 9th Circuit Court of Appeals in San Francisco and the 4th Circuit Court in Richmond, Va.
In the early rounds, lawyers pointed to Trump’s promise as a presidential candidate to enact a “Muslim ban,” and judges agreed his order reflected an unconstitutional discrimination based on religion. More recently, the legal battles have focused tightly on the provisions of U.S. immigration law.
So far, the Supreme Court has leaned in favor of the administration. The justices in June allowed much of the travel ban to take effect, except for those who already had established close ties to people or institutions in this country.
And on Dec. 4, the justices took the unusual step of sweeping aside the injunctions handed down by several judges and allowing Trump’s full travel ban to take effect, even though the cases were about to be heard by two appeals courts. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
That move suggested the court’s conservatives were exasperated by liberal trial judges issuing sweeping nationwide orders that rejected the president’s plan.
The high court has not spoken directly on the underlying legal issues, but last month’s order signals the challengers likely will have an uphill fight.
Their best hope may lie with a close reading of conflicting provisions in immigration laws.
The Constitution gives Congress the power to set the law on immigration, and the president is given the duty to enforce it. One provision, enacted in 1952, says the president may “suspend the entry of … any class of aliens … for such period as he shall deem necessary.”
Trump’s lawyers rely heavily on this clause and argue it gives the president nearly unchecked power, especially during national emergencies, to screen out people from certain countries who he thinks might pose a threat to national security.
But another provision, enacted in 1965 during the civil rights era, says people seeking an immigration visa to come to the United States shall not be “discriminated against … because of the person’s race, sex, nationality, place of birth or place of residence.” Congress said at the time it wanted to end the discriminatory system of national quotas.
Lawyers who sued to block Trump’s travel bans point to this clause as crucial, and the 9th Circuit Court did the same last month when it struck down the third version of the president’s order. The judges in a 3-0 decision noted Trump’s order no longer was portrayed as an urgent, temporary measure that gave time for the new administration to revise the “vetting procedures” for foreign travelers. Instead, the president’s third proclamation, issued in September, denies entry indefinitely to most travelers from Chad, Iran, Libya, Somalia, Syria, Yemen and North Korea as well as some government officials from Venezuela.
In ruling against Trump on Dec. 22, the 9th Circuit said the 1965 amendment to the Immigration and Nationality Act “eliminates nationality-based discrimination” as a basis for denying immigration visas. While the law “vests the president with broad power to regulate the entry of aliens, … those powers are not without limit,” the appeals court declared.
But the justices said they will hear the administration’s appeal of that decision in Trump vs. Hawaii and rule on whether the latest “proclamation is a lawful exercise of the president’s authority to suspend entry of aliens abroad” and consider whether it violates the Constitution’s ban on religious discrimination.
The court likely will hear arguments in April and issue a ruling by the term’s end in late June.
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