Higher education association amicus brief instrumental in dissenting opinions
The U.S. Supreme Court upheld President Trump’s travel ban Tuesday by a vote of 5 to 4, ruling that the Sept. 24, 2017, proclamation that currently applies to seven countries—five of them majority Muslim—was within the president’s constitutional authority.
At issue in the case, Trump v. Hawaii, was the president’s power to issue the travel ban and whether the courts can even review a presidential order on immigration that invokes national security; whether the president violated the 1965 Immigration and Nationality Act’s command against discrimination based on nationality; and whether the travel ban violates the Constitution's ban on religious discrimination.
The justices also looked at what weight should be given to the president’s statements and tweets as evidence that he was motivated by discriminatory attitudes toward Muslims.
Writing for the majority, Chief Justice John Roberts made it clear that the court viewed the ability to regulate immigration as squarely within a president's powers, rejecting claims of anti-Muslim bias that have plagued the Trump administration since it first issued the travel ban in January 2017.
In a statement, ACE President Ted Mitchell said, “While we strongly support the government’s efforts to keep our nation secure, we fear this broadly written prohibition will have a long-term impact on our standing as a global leader and hamper our education and research enterprise and the overall U.S. economy. As Justice Kennedy suggested in his concurrence with the decision to uphold the travel ban, the harsh rhetoric around immigration issues nonetheless can fuel a perception of exclusion. This decision makes it far more difficult to maintain the United States as the destination of choice for the world’s best students, faculty, and scholars, regardless of their nationality.”
On the quantifiable impact the travel ban has had on higher education so far, an analysis Inside Higher Ed published in early February found that the number of F-1 student visas granted for students from the affected countries had fallen sharply, as had the number of short-term B1 or B1/B2 visas, a category used by foreign scholars when they come to the United States for conferences.
Justices Stephen Breyer and Sonia Sotomayor, joined by Ruth Bader Ginsburg and Elena Kagan, wrote dissenting opinions, both citing the amicus brief submitted by ACE and 32 other higher education associations in March. The brief underscored the critical importance to American higher education and the nation that our institutions continue to be perceived as “destinations of choice compared to all others around the globe.”
Breyer's dissent focused on whether religious animus played a significant role in the travel ban. Describing the ban’s system of exemptions and waivers—which operates on a case-by-case basis—he noted that the State Department issued two waivers out of 6,555 eligible applicants during the travel ban’s first month, and that the government said 430 waivers had been granted by the end of month four.
Citing the associations’ amicus brief, Breyer wrote, “That number, 430, [...] when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats.” He concluded that the government is not applying the waiver process as written, which supports the view that the Trump administration is excluding Muslims “for reasons based upon their religion.”
Sotomayor also mentioned the brief to support her conclusion that the plaintiffs had convincingly established that “an injunction [against the brief] is in the public interest.” As explained by the scores of briefs submitted in support of plaintiffs, she wrote, “The Proclamation has deleterious effects on our higher education system; national security; healthcare; artistic culture; and the Nation’s technology industry and overall economy.”
Kennedy’s concurrence, on the eve of his announced retirement from the bench, transcended the particular issue presented in the case: “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”