On June 26, 2018, the Supreme Court of the United States upheld the travel ban implemented by the Trump Administration in September 2017. This travel ban was the third permutation after two other travel bans failed to withstand lower court scrutiny. Unsurprisingly, the travel ban was upheld along the party lines of the Supreme Court Justices.
The travel ban restricts immigrant entry from Iran, North Korea, Syria, Libya, Yemen, Somalia, and Venezuela in some form. While students of some of these countries are permitted entry into the United States, others are outright banned from entering; and tourists or business travelers from almost all of these countries are currently suspended from entry. These countries were purportedly selected after evaluating the foreign nations’ “deficient” information-sharing practices and national security risks.
The State of Hawaii and other opponents argued that the travel ban exceeded the President’s authority under the Constitution and the Immigration and Nationality Act (INA). Citing President Trump’s anti-Muslim campaign comments, opponents argued that the genesis of the travel ban was rooted in religious discrimination. However, a majority of the Justices found that the President of the United States has the power to limit who is permitted to enter the country.
Specifically citing the INA at 8 U.S.C. § 1182(f), the majority found that the statute vests the President with “ample power” to decide when to suspend entry into the country, who to suspend from entry, for how long to suspend entry, and under what conditions to suspend entry. Once the President determines who is not permitted to enter the country, the majority found that § 1152(a)(1) then prohibits visa allocation discrimination based on the individual’s race, sex, nationality, place of birth, or place of residence. The majority held that the discrimination protection comes only after the President determines who is not permitted to enter the country, as Congress did not specifically limit the President’s power under § 1182(f) to prohibit discrimination. The Court did not directly address President Trump’s anti-Muslim comments, noting that the Justices were required only to balance Trump’s comments and the authority of the President in and of itself. The Court found that the travel ban was neutral and squarely within the scope of Presidential authority, thus upholding it.
The travel ban is to be reviewed every 180 days, which may lead to changes to the current restrictions. Littler’s Global Mobility & Immigration team is ready to assist your organization.1
1 Employers interested in more information in the short term might wish to consult our complimentary Travel Ban Navigator tool. See also Press Release, Littler and ComplianceHR Launch Travel Ban Navigator (Jan. 23, 2018).