TRUMP'S Travel Ban upheld by US Supreme Court



In a landmark judgment USA Supreme Court in the matter of TRUMP, PRESIDENT OF THE UNITED STATES, ETAL V. HAWAII, has upheld the validity of the Proclamation no. 9645, seeking to improve vetting procedures for foreign nationals travelling to the United Stated. A jury of nine judges headed by chief justice Roberts pronounced a majority judgement by 5-4 upholding the validity of the proclamation no. 9645.

In September 2017, President Trump issued proclamation which placed entry restrictions on the nationals of eight foreign states, popularly known as travel ban on Muslim countries. Foreign states were selected for inclusion based on review undertaken pursuant to one of the President’s earlier executive orders. As a part of review Department of Homeland and intelligence agencies, developed an information and risk assessment “baseline”. Subsequently, the Acting Secretary of Homeland security concluded that eight countries –Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela and Yemen remained deficient to improve their practices. President adopted the said recommendations and issued the Proclamation.    

The Proclamation imposes a range of entry restrictions that vary based on the “ district circumstances” in each of the eight countries. However, three Muslim- majority counties –Iraq, Sudan and Chad were removed from the list later on.

The plaintiff –The state of Hawaii, three individuals with foreign relatives affected by entry suspension, and the Muslim Association of Hawaii challenged the Proclamation on the ground that Proclamation violates the Immigration and Nationally Act ( INA) and establishment Clause. The District Court granted a nationwide preliminary injunction barring enforcement of the restriction.

Supreme Court held that President has lawfully exercised the broad discretion granted to him under  § 1182(f) to suspend the entry of alien into the United States. USC §1182(f) entrusts to the President the decision whether and when to suspend entry, whose entry to suspend, for how long and on what conditions. It thus vests President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in  § 1182 ( f) is that President find that the entry of the covered aliens would be detrimental to the interest of the United States.

Court also observed that Plaintiff have not identified any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s Vetting system. The existing ground of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high –risk countries to provide a minimum baseline of reliable information.    

It was also observed that admission and exclusion of the foreign nationals is fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of visa allegedly burdens the constitutional right of a U.S Citizen. The Court assumes that it may look behind the face of the Proclamation to the extent of apply rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting process. The policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.

Court took note of the fact that the entry restrictions in Muslim- majority nations are limited to countries that were previously designated by congress or prior administrations as posing national security risks.  Plaintiffs challenged the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgements on such matters. Court cited Holder V. Humanitarian Law Project, 561 U.S.1, 33-34 in this regard.  

Court further taken in consideration that since the President introduced entry restrictions in January 2017 three Muslim-majority states Iraq, Sudan and Chad have been removed from the list and those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals and Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or non-immigrants. Considering the same Court concluded that the Government has set forth a sufficient national security justification to survive rational basis review and upheld the validity of the Proclamation no. 9645.


For full judgement you can write to azeez_nazar@rediffmail.com  

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