California Forum

Trump’s travel ban is still illegal. The Supreme Court should slap it down

Supporters surround a group who perform the Islamic midday prayer outside the White House in Washington on Saturday during a rally on the one-year anniversary of the Trump Administration’s first partial travel ban on citizens from Muslim majority countries. The U.S. Supreme Court has granted review in the latest challenge to the latest version of Trump’s ban.
Supporters surround a group who perform the Islamic midday prayer outside the White House in Washington on Saturday during a rally on the one-year anniversary of the Trump Administration’s first partial travel ban on citizens from Muslim majority countries. The U.S. Supreme Court has granted review in the latest challenge to the latest version of Trump’s ban. AP

On Jan. 19, the Supreme Court granted review in the challenge to the latest iteration of the travel ban. The court should find it to be a violation of federal law and unconstitutional.

This is the third effort by President Donald Trump to prevent immigration from several designated countries. Virtually every federal court, trial and appellate, to consider any of these versions has found them to be invalid.

The initial travel ban was created by an executive order on Jan. 27, 2017. It barred all immigration from seven designated countries – Sudan, Syria, Iran, Libya, Somalia, Yemen and Iraq – for a period of 90 days. It also suspended the refugee program for 120 days. It applied even to those who had the right to be in the United States because they had green cards and valid visas. There was an exception for those who were of minority religions in these majority Muslim countries.

The Trump travel ban is irrational in the countries it designates, illegal in violating a clear federal statute, and unconstitutional in discriminating on the basis of religion.

A federal district court in Washington state issued a nationwide preliminary injunction and the U.S. Court of Appeals affirmed, concluding that the travel ban was impermissible discrimination based on religion. The courts said that it was clear from the statements of the president and other White House officials that this was meant to be a “Muslim ban.”

The Trump administration did not seek review in the U.S. Supreme Court, but instead issued a second version of the travel ban via a new executive order. This time all immigration was barred from six countries for a period of 90 days; Iraq was removed from the list. The refugee program was again suspended for 120 days. But this time the ban did not apply to those who had visas or green cards and there was no exception for those of minority religions.

Federal district courts in Maryland and Hawaii issued preliminary injunctions concluding that this version of the travel ban, too, was likely unconstitutional. Both federal courts of appeals agreed. The Supreme Court granted review in both cases and scheduled oral arguments for Oct. 10, 2017. But by then the 90- and 120-day time periods had expired or were about to expire, so the court dismissed the cases as moot.

Trump, by executive proclamation, then issued the travel ban now before the Supreme Court. It bans immigration from eight countries: Iran, Libya, Syria, Somalia, Yemen, Chad, North Korea and Venezuela. It is of indefinite duration so this case will not become moot.

A federal district court in Hawaii issued an injunction and in December, the U.S. Court of Appeals for the Ninth Circuit agreed. The appeals court focused on a federal statute, adopted in 1965, that says: “No person shall receive any preference or priority in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The travel ban is entirely about discriminating based on nationality and place of residence.

The 1965 Immigration and Nationality Act eliminated the old system where immigration was based on quotas from particular countries. It was this approach that kept many fleeing the Holocaust from being able to come to this country and condemned them to death in concentration camps. The statute also is based on the simple premise that it is wrong to presume a person to be more dangerous because of race or sex or religion or nationality or place of birth or place of residence.

The Trump travel ban violates this in a particularly irrational way because, as lower courts have observed, there is no link between the designated countries and any proven terrorist acts in the United States. It is perversely ironic that the only thing that these countries seem to share in common is that Trump has no economic investments in them.

Other countries where Trump has investments, like Saudi Arabia, which have had links to terrorism, are not on the list. In fact, North Korea and Venezuela seem to have been added for no reason except to try and to show that this new version is not a Muslim ban. But Trump and his advisers have been explicit since the campaign that what they want is to keep Muslims from coming to the United States. That is offensive and unconstitutional.

The Trump travel ban is irrational in the countries it designates, illegal in violating a clear federal statute, and unconstitutional in discriminating on the basis of religion. The Supreme Court should declare it invalid and send a clear message that such discrimination is not allowed.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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