President Trump’s executive order barring immigrants, refugees, and other travelers coming from seven countries, six of them with Muslim majorities, is now a permanent part of U.S. immigration policy.
The U.S. Supreme Court on Tuesday ruled 5-4 to uphold the third iteration of Trump’s so-called travel ban, in effect since December.
The policy, which affects citizens of Iran, Libya, North Korea, Syria, Somalia, Yemen, North Korea, and some Venezuelan leaders, has upended lives and left families across those countries separated.
Demonstrations and protests were being quickly arranged as reaction poured in from both sides. Immigrant and religious freedom advocates said the ruling gives a blank check to Trump and future presidents to discriminate simply by claiming national security justifications.
“Instead of neutral arbiters upholding fundamental rights, today’s decision seems to have been reached by politicians in robes,” the Arab American Institute wrote in a statement.
“The majority bought President Trump’s bigotry hook, line, and sinker. This decision undermines both the world’s confidence in America, and America’s confidence in our highest court.”
The decision reverses a series of lower court decisions that had struck down previous travel bans as illegal or unconstitutional, including the first order, which was issued a week after Trump took office and triggered a worldwide outcry and demonstrations and protests across the country.
Writing for the majority, Chief Justice John Roberts said the restrictions imposed on these countries followed a worldwide review process. Trump’s order, he wrote, “is squarely within the scope of Presidential authority,” adding, “We express no view on the soundness of the policy.”
Trump had justified his travel ban by stating, “What I’m doing is no different than FDR,” a supposed reference to the internment of Japanese Americans during World War II, which he later denied. But Justice Sonia Sotomayor, in a blistering dissent of the majority opinion, in which she was joined by Justice Ruth Bader Ginsburg, used Trump’s inflammatory rhetoric about Muslims to underscore the “stark parallels” between Tuesday’s opinion and one of the high court’s most shameful moments: Korematsu v. United States, the decision that upheld the internment policies.
“Nothing is easy anymore under the Trump administration.”
“Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” Sotomayor wrote. “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
In writing the majority opinion, Chief Justice John Roberts specifically rejected Korematsu, while dismissing the dissent’s invocation of that rule.
“The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority …” Roberts wrote. “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”
In the months since the travel ban took effect, immigration attorneys have had to meet uncertain and harsh standards to reunite families and bring even their most eligible clients from those countries into the U.S.
But most of those petitioners who are seeking a waiver of the travel ban are still awaiting a decision. That’s left parents separated from their children, spouses from each other, and workers from their jobs.
And it means these waivers, already difficult to come by, will now be the only means for citizens of countries named in the ban to enter the U.S.
“We’ve had CEOs of multinational companies denied visas to come and grow their business in the United States; people with graduate degrees and highly sought-after STEM skills who are denied after studying and working in the U.S. for years, and families who are separated for no apparent reason whatsoever,” said immigration attorney Karol Brown of Bellevue, Washington.
“The suddenly heightened burden of evidence requested and the sharp increase of denials under the Trump Administration is frustrating because the law itself hasn’t changed,” she said.
A travel ban waiver, for example, would clear the way for her client Afshin Raghebi to receive legal permanent resident status in the U.S., where he’s been living since 2006 and taking care of his ailing wife, Pamela, a U.S. citizen.
But since March, Raghebi, an Iranian citizen, has been stuck in Turkey, where he traveled to obtain his green card but where he’s been living in a hotel awaiting a decision from embassy officials on the travel ban waiver.
According to data the State Department sent to Congress, only two waivers were approved out of the 8,406 applications processed from the targeted countries during the first month of the ban. The latest figures through May 15 show that 655 applications have been cleared for waivers, although that does not indicate a visa was granted.
“So many people have focused recently on the separation of families at the border, which is a horrific and likely illegal policy,” Brown said. “But what hasn’t received the same attention is that there are many straightforward, compelling cases that previously would have been approved routinely. These are now being delayed or denied by policies like the travel ban or by reasons that are not based in the law. Nothing is easy anymore under the Trump administration.”
Lornet Turnbull is the civil liberties editor for YES!, a Seattle-based freelance writer, and a regional freelance writer for The Washington Post.