The Supreme Court’s ruling Tuesday upholding President Trump’s travel ban against predominantly Muslim countries could lead to more bans targeting more people from far more countries, legal experts say.
Those who support and oppose Trump’s ban said the ruling opens the door for the president to fully flex his executive authority to restrict legal immigration from additional countries as long as he provides a rational reason to do so, such as national security or public safety.
The court’s decision came in the third version of the ban, which affects nearly 150 million residents of Iran, Libya, Somalia, Syria and Yemen. Trump signed the first version into effect a week into taking office, arguing it was needed to improve the nation’s ability to vet inbound travelers from terror-prone countries, but was dealt a series of defeats by lower courts.A second version, issued in March 2017, dropped Iraq from the list of affected nations and exempted visa- and green card-holders but also ran into legal challenges.
Writing for the majority in the decision on the third version, Chief Justice John Roberts cited a law passed by Congress that allows a president to suspend entry to foreigners, or entire classes of foreigners, if he deems their entry “detrimental to the interests of the United States.” Roberts said that law grants “ample power” to the president on “decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”
Analysts believe that could allow the president to institute a temporary ban on immigration from El Salvador, for instance, by citing the public-safety threat posed in U.S. cities by MS-13 gang members from that country. The court’s ruling allows the president to limit legal immigration in the name of national security, and the Justice Department has warned that gang members are infiltrating the country through the asylum system.
“Yeah, he could definitely make Salvadorans inadmissible,” said Christopher Hajec, litigation director for the Immigration Reform Law Institute, which filed an amicus brief supporting the travel ban. “Trump would merely have to have a rational basis for that exclusion, according to this opinion.”
The president could implement similar restrictions on more Muslim countries with ties to terrorism, on Central American countries riddled with drug cartels, and other nations that his administration claims are posing an ongoing threat to U.S. security.
“I think that anything is possible with this administration,” said Lee Gelernt, an attorney with the ACLU who has been battling Trump’s travel ban in federal court.
The Trump administration has not publicly discussed any plans for future travel bans targeting additional countries. But responses from the administration on Tuesday left open that possibility.
Attorney General Jeff Sessions said the ruling was critical to ensuring “the continued authority of President Trump” to protect the American people. The Department of Homeland Security said the ruling, which addressed an executive order that focused on the threat of terrorism, will help stop the entry of not only terrorists but “other malicious actors who seek to do us harm.”
The ruling is not, however, a blanket approval to ban immigration from wherever the president wants.
Andrew Arthur, resident fellow of law and policy at the Center for Immigration Studies, a group that advocates for lower levels of immigration and supports Trump’s travel ban, said the justices decided mostly on the specifics of the current travel ban.
Arthur, a former immigration judge, said the order was designed to improve information-sharing between the U.S. and countries that are not providing adequate information on the identity, criminal history and terrorist ties of its citizens who are trying to enter the U.S. The administration identified 47 countries with questionable information-sharing processes through its implementation of the travel ban and has been working to improve those relationships.
That means the justices were giving approval to that process alone. But Arthur conceded that Roberts and his majority also managed to provide the longest and most in-depth defense yet of the presidential ability to ban people deemed “detrimental to the interests” of the U.S.
“This is a huge grant of deference to the executive branch,” he said.
The administration will be limited in its ability to use Tuesday’s ruling to back up its domestic immigration-enforcement efforts. For example, the president could not use the ruling to summarily deport thousands of people living in the U.S. who come from particular countries, since the ruling deals only with people trying to enter the U.S., according to Cornell Law School professor Stephen Yale-Loehr.
“That would be a totally different case,” he said.
But given the president’s actions and attitudes towards immigrants so far, Yale-Loehr said the president may ignore that kind of legal nuance and use Tuesday’s ruling and justification to go all in on his enforcement wish list.
“I think he’s going to tout this as a vindication of his general immigration priorities,” Yale-Loehr said. “I think he may feel emboldened to continue to restrict immigration in a variety of ways because he believes that even if challenged in court, he may well win.”
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