ADEA Issue Watch: Supreme Court Upholds Legality of Travel Ban in Trump, et al. v. Hawaii, et al.
On Tuesday, June 26, 2018, The United States Supreme Court (Court) in a 5–4 decision upheld the legality of Executive Order 13780 (EO-3) in Donald J. Trump, et al. v. Hawaii, et al., Docket No. 17-965, which sought to ban travel to the United States primarily by people living in Muslim-majority countries.
Chief Justice Roberts delivered the majority opinion. In writing for the majority, he stated the court “cannot substitute its own assessment for a president’s national security decisions, because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” The Chief Justice stated further that since President Trump first introduced the executive order (EO), three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list, with the latest EO citing numerous exceptions and a waiver program for various categories of foreign nationals. Therefore, the majority believed that “under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review.”
The majority opinion evoked a 46-page dissent from Justice Sonia Sotomayor, who wrote that the majority “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.” Justice Ruth Bader Ginsburg joined Sotomayor’s dissent. Justice Stephen Breyer filed a separate dissent that Justice Elena Kagan joined.
From the campaign trail to public office, President Trump raised several concerns about legal and illegal immigration to the United States. Trump’s EO-13769 (EO-1) on travelers from mostly Muslim-majority countries was one of his first major policy initiatives, and the various versions of it have been tied up in legal challenges since Jan. 27, 2017.
The state of Hawaii, which brought forth the challenge at issue, argued that the president does not have limitless power to discriminate against people of the Muslim faith by restricting their right of entry into the United States. The Supreme Court already had allowed the administration to implement the current version of the ban, the third overall, in December 2017.
At issue before the Court were several lower court rulings, which held that the Trump Administration had overstepped its authority under federal law and unconstitutionally discriminated against Muslims.,
Action by ADEA
ADEA first updated members about the EO-1 in a Jan. 31, 2017 memo. Since then, ADEA has tracked the new EO-13780 (EO-2), and the revised version (EO-3), as well as the various legal challenges. ADEA also participated in several discussions with sister organizations about the impact the EO would have on non-U.S. health care professionals and scientists.
ADEA joined several health organizations in filing two amicus curiae briefs—one on June 9, 2017 and the other on March 27, 2018. Also known as a “friend of the court” brief, these briefs addressed the March 6, 2017 EO-2 and the Sept. 24, 2017 Presidential Proclamation 9645 expanding and defining the EO-2 version, which banned travel by persons from six majority-Muslim countries. These briefs, led by the Association of American Medical Colleges, argue that the travel ban severely restricts the movements of foreign-born health care professionals, who are integral to the functioning of U.S. health care and related academic and research enterprises.
The briefs note that health care professionals from other nations fill critical gaps in the U.S. health care workforce, strengthen hospitals and schools, and position the United States as a global leader in medical research. Furthermore, the briefs state that preventing the entry or re-entry of such health care professionals would undermine the health security of our nation and have an especially severe impact on rural and traditionally underserved areas.
There is no appeal and no further legal redress once the nine appointed Justices have made a decision. There are legislative remedies to Supreme Court decisions, but the process of legislative redress is slow, cumbersome and often uncertain. Without legislative redress, however, when the issue turns on the meaning and application of the U.S. Constitution, as this case does, the decision is final, subject to modification only by constitutional amendment or by a succeeding Supreme Court.
ADEA is continuing to analyze the Court’s decision to determine the direct effect on dental students, faculty, researchers and other individuals who travel from the countries specified in the EO and who are nationals or dual nationals of those countries.