On Monday, June 26 the U.S. Supreme Court handed President Trump a partial victory by allowing the government to prohibit the entry into the U.S. of some foreign nationals banned by the president’s January, 2017 executive order. In his order, the second Trump issued on the same question, most travelers from six Muslim-majority countries were temporarily prohibited from entering the United States.
Was the president’s ban legal? Supporters of the ban pointed to the Nationality Act of 1952, which gives the president the authority to impose restrictions on the entry of foreign nationals if he or she determines their entry “would be detrimental to the interests of the United States.” Opponents of the ban argued that the 1952 statute was modified by a 1965 law that prohibits discrimination against immigrants based upon their country of origin. They argued, moreover that Trump’s various utterances and “tweets” showed that the ban was aimed only at Muslims, a form of discrimination based upon religion that is inconsistent with constitutional precepts.
While lower federal courts had blocked the travel ban from going into effect, the Supreme Court said it would hear the case in October but, in the meantime would allow the ban to go forward. Exemptions would be made for travelers who were coming to the U.S to join family members, to take job offers or to attend school. Though the Court could rule against the ban in October, generally when the Court allows the government to go forward pending later review, it is signaling that it is likely to uphold the government’s (in this case the president’s) actions.
Americans may debate the propriety of President Trump’s executive order but they should not be surprised that it was upheld by the Supreme Court. Every year, presidents issue hundreds of executive orders and these are nearly always upheld by the federal courts. Presidents often use executive orders to achieve goals that would have little chance of winning congressional approval. Executive orders are very difficult for Congress to overturn since legislation negating such an order is likely to be vetoed by the president who issued it. The courts are reluctant to engage in battles with the White House. The result is that rule by presidential decree has become an unfortunate fact of life in the United States.
By the way, the only effective mechanism for negating an executive order is a new order by the next president.