Supreme Court Upholds Trump’s Travel Ban

Supreme Court Upholds Trump’s Travel Ban

The U.S. Supreme Court rejected a challenge to President Donald Trump's travel ban on June 26, holding that the president has lawfully exercised his broad discretion to suspend entry into the country. Employers should work with their immigration attorneys to determine how the travel ban may affect their workforce.

Proclamation No. 9645 placed various travel restrictions on foreign nationals from eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen (though Chad was later removed from the list). Those countries were deemed to present national security concerns.

The plaintiffs who challenged the travel ban argued that the ban was actually intended to discriminate against Muslims—as most of the covered countries have Muslim-majority populations. In support of their argument, the plaintiffs pointed to Trump's statement on "preventing Muslim immigration" that was posted on his campaign website (and that was later deleted), as well as other statements Trump and his advisors have made. But the high court rejected that argument.

"[T]he issue before us is not whether to denounce the statements," wrote Chief Justice John Roberts Jr. for the court. "It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility."

In a 5-4 ruling, the justices found that the government established a sufficient national security justification for the travel ban, and it reversed a lower court's order that had granted a preliminary injunction to temporarily halt the ban.

"We express no view on the soundness of the policy," Roberts wrote. "We simply hold today that [the] plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim."

The high court delivered a key win to the Trump administration on one of its strict immigration enforcement stances, noted Joshua Nadreau, an attorney with Fisher Phillips in Boston. "In its decision, the court concluded that the president's proclamation—which largely targeted individuals from predominantly Muslim countries—did not violate the Constitution's Establishment Clause by favoring one religion over another," he said.

Employers should caution their workers from the applicable countries about any unnecessary travel outside the United States, he added. "While the underlying litigation surrounding the travel ban will now continue in the lower courts, that process could drag on for months, and the outcome is uncertain."

Visa Restrictions

Under the travel ban, immigrant visas have been suspended entirely for Iran, Libya, North Korea, Syria, Yemen and Somalia. Some government officials from Venezuela will also be prohibited from obtaining immigrant visas.  

Foreign nationals may be cleared if they can prove that they have a relationship with a person or entity in the United States. Job candidates with offers from U.S. businesses and students with admissions offers from U.S. school might be cleared.


Travel Ban Timeline

Trump first signed an executive order establishing a travel ban in January 2017. Since then, he has issued several revised executive orders. These orders have been challenged as unconstitutional in multiple jurisdictions across the county. Here is a timeline showing the legal challenges and major court decisions about the travel ban.

(Fox News)

Increased Outsourcing?

Based on the uncertainty caused by the travel ban, some recruiters have said that companies are outsourcing more work abroad and depending more on IT firms that are based outside the United States. Technology firms said that they might have a harder time recruiting workers from abroad regardless of whether they are covered by the travel ban because those workers may not feel welcome in the country.

(SHRM Online)

Additional Screening

It is important for employers to note that the travel ban allows people from some restricted nations to continue to enter the United States if they already have a valid visa or permanent residency in the country, but they may be subject to additional screening, an attorney told SHRM Online.

(SHRM Online)

The case is Trump v. Hawaii, U.S., No. 17–965 (June 26, 2018).



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