Supreme Court’s travel ban decision sends a clear message to lower federal court judges
The following op-ed by Committee for Justice President Curt Levey was published in Fox News:
The Supreme Court decision Tuesday upholding President Trump’s “travel ban” also sent a subtle but clear message to lower federal court judges – don’t get too big for your britches. This was reinforced by Justice Clarence Thomas's warning to judges who attempt to set national policy by issuing overly broad orders.
The 17-month legal battle over the "travel ban" ended Tuesday with a 5-4 victory for the president in the Supreme Court and a setback for those who have tried to portray the president's immigration policies as discriminatory.
Ruling in Trump v. Hawaii, the high court upheld the travel ban in its entirety, reversing lower courts that had seemed to join the Trump Resistance.
President Trump's travel ban, aimed at countries that failed to provide the information necessary to properly vet travelers to the U.S., was twice revised to satisfy judges who second-guessed the president's statutory authority and concluded that the ban was intended to discriminate against Muslims. The third and final version of the ban, upheld Tuesday, limits travel from seven countries: North Korea, Venezuela, Iran, Syria, Libya, Somalia and Yemen.
Writing for the majority, Chief Justice John Roberts found that the relevant statute "vests the President with ample power" to enact the ban. Moreover, the list of nations included in the ban "does not support an inference of religious hostility, given that the policy covers just 8 percent of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks."
Also before the court was the question of whether the district court below exceeded its authority by issuing a court order with universal scope, covering all affected foreigners regardless of whether they had any connection to the plaintiffs – the state of Hawaii, the Muslim Association of Hawaii, and three people whose foreign relatives were affected by the ban. Roberts noted that, because the ban was upheld, it was "unnecessary to consider the propriety of the nationwide scope of the injunction."
Nonetheless, Thomas wrote a separate concurring opinion to address the issue of universal injunctions – also called "nationwide" or "national" injunctions – which by definition prohibit the enforcement of a federal law against everyone, rather than just the plaintiffs before the court. Thomas noted that such court orders "have exploded in popularity" recently and "are legally and historically dubious."
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