Simone Lawson
Former US President Donald Trump's travel ban, which restricted entry into the United States by foreign nationals from several countries, was deemed unconstitutional by many legal experts and critics. Trump's first travel ban, imposed in January 2017, targeted seven Muslim-majority countries and was labelled the Muslim ban by critics. Subsequent iterations of the ban targeted additional countries, with the third version facing legal challenges in lower courts. The key issues included whether Trump exceeded his powers under the Immigration and Nationality Act and whether the ban discriminated on the basis of religion, violating the Constitution's Establishment Clause. The Supreme Court's rulings and justifications varied, with some upholding the ban and others finding legal and constitutional failures. The travel ban's constitutionality remains a highly contested issue, with ongoing debates and challenges.
| Characteristics | Values |
|---|---|
| Nature of the ban | Restricting entry into the United States by foreign nationals from certain countries |
| Countries affected | Chad, Iran, Libya, North Korea, Syria, Yemen, Somalia, Venezuela |
| Legal challenges | Violation of the Establishment Clause, Immigration and Nationality Act, discrimination on the basis of religion |
| Court rulings | Blocked by lower courts, allowed by Supreme Court |
| Public opinion | Criticism for targeting Muslim nationals |
| Current status | Revoked by Joe Biden in 2021 |
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What You'll Learn
Trump's ban was deemed discriminatory against Muslims
The ban was challenged in court and criticized as targeting Muslim nationals and violating the Constitution's Establishment Clause, which prohibits the government from establishing a religion. The American Civil Liberties Union (ACLU) and other organizations argued that the ban violated the First Amendment's prohibition of government establishment of religion and the Fifth Amendment's guarantees of equal treatment under the law.
In addition to legal challenges, the ban sparked protests around the country and caused disruptions for families with members from the affected countries. The inclusion of non-predominantly Muslim countries in the ban was seen as a red herring, as very few people from those countries would be affected.
The text of the first Muslim ban was lifted almost verbatim from a 2016 speech given by then-candidate Trump, entitled "Understanding the Threat: Radical Islam and the Age of Terror." The administration's "worldwide review" to identify inadequacies in the vetting practices of other countries was also seen as a mechanism to reverse-engineer the original Muslim ban.
Despite the legal and constitutional challenges, the Supreme Court allowed the government to implement the travel ban while it reviewed the lower court rulings, and ultimately upheld most provisions of the third version of the ban.
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The ban violated the Immigration and Nationality Act
Trump's travel ban, imposed with Executive Order 13769 on January 27, 2017, restricted entry into the United States by foreign nationals from several Muslim-majority countries. This ban was challenged in court and criticised as discriminating against Muslim nationals and violating the Immigration and Nationality Act.
The Immigration and Nationality Act of 1965 modifies the Immigration and Nationality Act of 1952 to include the statement: "No person shall [...] be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence". Trump's travel ban was found to violate this Act, barring entry based on nationality and place of birth.
The ban was also criticised for targeting Muslim nationals, with Trump's comments suggesting a "total and complete shutdown of Muslims entering the United States". The ban was labelled a "Muslim ban" by critics and the media, and Trump's anti-Muslim comments were cited as evidence of the discriminatory nature of the ban.
In addition, the ban was challenged on the grounds that it violated procedural due process under the Fifth Amendment of the US Constitution and the Administrative Procedure Act by denying entry to foreign nationals with valid visas. The American Civil Liberties Union (ACLU) filed a civil action against Trump, alleging that the ban discriminated against individuals based on their country of origin and religion without sufficient justification.
The lower courts, including the federal district court in Hawaii and the US Court of Appeals for the Ninth Circuit, found legal and constitutional failures with the ban, particularly in relation to the Immigration and Nationality Act. However, the Supreme Court allowed the ban to take effect pending its review, prioritising national security concerns over the Act's provisions.
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The ban was challenged in lower courts
Trump's travel ban was challenged in lower courts on several occasions. The first instance was in March 2017, when Hawaii v. Trump (Hawaii District Court) blocked the second executive order travel ban and refugee ban before they took effect on constitutional grounds. The Ninth Circuit affirmed the decision on statutory grounds, allowing the government to implement the ban with respect to those without "bona fide relationships".
IRAP v. Trump (Maryland District Court) also blocked the second executive order's travel ban before it took effect on constitutional grounds. The Fourth Circuit upheld this ruling, continuing the block of the travel ban as it violated the Establishment Clause of the United States Constitution.
In October 2017, Hawaii v. Trump again blocked the third executive order, excluding the nationals of Venezuela and North Korea, based on the likelihood of success on statutory claims. The Ninth Circuit affirmed the injunction but limited it to people with "bona fide relationships".
In December 2017, the Ninth Circuit Court of Appeals ruled that the plaintiffs were likely to succeed in their claim that the Proclamation violates the Immigration and Nationality Act. The following month, the Fourth Circuit Court of Appeals ruled that the plaintiffs were likely to succeed in their claim that the ban violates the First Amendment of the U.S. Constitution, finding that the Proclamation was "unconstitutionally tainted with animus toward Islam".
In Trump v. Hawaii, the Trump administration sought to reverse lower court rulings that found legal and constitutional failures with the third version of the travel ban. The Supreme Court allowed the travel ban to take full effect in December 2017, pending its decision on the government's appeal.
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The Supreme Court allowed the ban to take effect
The Supreme Court's decision came after lower courts, including the Ninth Circuit Court of Appeals and federal district courts in Hawaii and Maryland, blocked the travel ban on constitutional and statutory grounds. The lower courts found that the ban violated the Immigration and Nationality Act and was discriminatory towards Muslims, in violation of the Establishment Clause of the First Amendment.
In allowing the ban to take effect, the Supreme Court raised the bar for a successful constitutional challenge, putting forward a legal standard that was exceedingly deferential to the government. The Court rejected the argument that the ban violated the Establishment Clause, pointing out that only 8% of the world's Muslim population was affected and that several Muslim-majority countries had been dropped from the original ban.
The Supreme Court's decision to allow the ban to take effect while it reviewed the lower courts' rulings was not a ruling on the legality of the ban itself. The Court's final ruling on the case upheld the administration's ban, finding that it did not violate the Constitution or the Immigration and Nationality Act.
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The ban was considered a national security measure
Trump's travel ban was considered a national security measure. The ban, imposed with Executive Order 13769 on January 27, 2017, restricted entry into the United States by foreign nationals from several countries. The countries included in the ban were: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. North Korea was the only country targeted with a reverse travel ban, prohibiting American citizens from travelling there.
The ban was considered a necessary measure to protect the nation from foreign terrorist entry into the United States. Trump and his administration argued that the ban was based on national security concerns and was not a Muslim ban. They stated that the banned countries were previously designated by Congress or prior administrations as posing national security risks. Additionally, the administration conducted a worldwide review to identify inadequacies in the vetting practices of other countries, which informed their decision on which countries to target with travel restrictions.
The ban was challenged in court on constitutional grounds, with lower courts finding legal and constitutional failures. The Hawaii District Court and the Maryland District Court both blocked the ban on the basis that it violated the Establishment Clause of the First Amendment and the Immigration and Nationality Act. The Supreme Court, however, allowed the ban to take effect pending its review of the lower courts' decisions.
While the ban was considered a national security measure, critics argued that it was a Muslim ban in practice. They pointed to Trump's anti-Muslim comments and the fact that the banned countries were predominantly Muslim as evidence. Additionally, it was noted that the waiver exemptions for people from banned nations were being granted at a very low rate, indicating that the ban was not solely focused on national security concerns.
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Frequently asked questions
Trump's travel ban was a series of executive actions that restricted entry into the United States by certain foreign nationals. The ban predominantly affected Muslim-majority countries and was criticized as targeting Muslim nationals.
Trump's travel ban was deemed by some to be against the constitution as it was believed to violate the Establishment Clause of the First Amendment, which prohibits favoring one religion over another. Additionally, the ban was also believed to violate the Immigration and Nationality Act, which states that no person shall be discriminated against when issuing an immigrant visa based on nationality.
There were several legal challenges to Trump's travel ban, including Hawaii v. Trump, IRAP v. Trump, and State of Washington and State of Minnesota v. Trump. These cases argued that the travel ban violated the Constitution and the Immigration and Nationality Act.
The legal challenges to Trump's travel ban had mixed outcomes. Some lower courts initially blocked the travel ban, but the Supreme Court later allowed the government to implement it with certain exceptions for individuals with ""bona fide relationships". The Supreme Court also upheld the administration's ban on nationals from Venezuela and North Korea. However, the Ninth Circuit Court of Appeals and the Fourth Circuit Court of Appeals ruled that the ban likely violates the First Amendment and the Immigration and Nationality Act.
