The 5-4 ruling in the Supreme Court this week gives the White House a big win. The travel ban which was originally put in place early in Trumpās presidency was highly controversial as it banned 5 mainly Muslim countries. President Trump argued it was āsquarely within the scope of Presidential authority under the INAā The Supreme Court agreed.
āThe President lawfully exercised that discretion based on his findings- following a worldwide, multi-agency review-that entry of the covered aliens would be detrimental to the national interestā, Justice Roberts wrote in his opinion. Sotomayor disagreed in the dissenting opinion. āUltimately, what began as a policy explicitly ācalling for a total and complete shutdown of Muslims entering the United Statesā has since morphed into a āProclamationā putatively based on national security concerns,ā said Justice Sotomayor.
Justice Kennedy in his concurring opinion wrote, “there may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,ā Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of todayās decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.ā
Justice Breyer joined Sotomayor in the dissenting opinion. āDeclarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfinding. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assurance that the Proclamation does not rest upon a āMuslim ban,ā and the assistance in deciding the issue that answers to the āexemption and waiverā questions may provide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Courtās decision today leaves the District Court free to explore these issues on remand. If this Court must decide the question without this further litigation, I would, on balance, find the evidence of anti-religious bias, including statements on a website taken down only after the President issued the two executive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYORās opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent.ā