August 3, 2017
President Trump’s so called “travel ban” is likely to see its day at the Supreme Court of the United States, and it is likely to be sooner rather than later. According to Bloomberg Law, on June 12, the 9th Circuit Court of Appeals ruled against Trump’s order, saying that the President exceeded his authority by suspending nationals from six mostly Muslim countries. While the Administration contends that his order is lawful and is motivated by national security concerns, the Federal Courts who have ruled on the travel ban have not seen an adequate explanation within the order how allowing individuals coming from these six countries under current immigration policies would be harmful. Critics of the law have suggested that it is motivated by animus, or an unfavorable disposition towards a certain group. Animus laws are almost always held unconstitutional, though it is rare for the Supreme Court to actually find a law motivated my animus other than a legitimate purpose.
Additionally, the Supreme Court indicated in a decision also on June 12 that they may be rethinking their rulings on immigration cases. Traditionally, immigration legislation or orders by the President have been largely upheld by the Federal Courts, giving deference to their decisions. However, there is a good chance that the Supreme Court decides to align immigration jurisprudence with ordinary constitutional law in regard to the Equal Protection Clause of the 14th Amendment, applying the proper form of scrutiny or review to the law depending on if it has a discriminatory effect on a certain class of individuals. Discrimination against a group based on nationality could be subject to strict scrutiny, and the Trump Administration would be required to prove that the travel ban is justified by a compelling government interest, and that the ban is narrowly tailored to serve that interest, using the least restrictive means possible. Thus, the ban might be in trouble, as a non-specific limitation of people coming to America from certain countries might not be narrowly tailored enough to serve national security interests. Additionally, the National Security interests could not be found to be compelling enough to justify a discriminatory effect, given the fact that the law fails to show how current law fails to protect the interests served by the travel ban.
The good news for Trump: with Justice Gorsuch on the court, the conservative faction could swing the decision in the President’s favor. Either way, the end of this month will prove to be a crossroads for both immigration law and the President’s policies moving forward.