United States: Supreme Court Upholds Trump's Third Travel Ban

In one of its most anticipated cases in decades, a deeply divided U.S. Supreme Court ruled 5-4 in favor of upholding President Trump's latest "travel ban" today, delivering a key win to the Trump administration and one of its strict immigration enforcement stances. In its decision, the Court concluded that the president's executive order—which largely targeted individuals from predominately Muslim countries—did not violate the Constitution's Establishment Clause by favoring one religion over another. Despite the rhetoric from the president and those in his administration that some claimed to prove religious bias, the Court ruled that the order was a lawful exercise of the authority granted to the president by Congress (Trump v. Hawaii).

The Supreme Court's action now permits immediate enforcement of one of the president's signature immigration policies that began in January 2017 and included repeated trips to the federal judiciary. Employers with workers from the affected countries—Iran, Libya, Syria, Yemen, Somalia, North Korea, and Venezuela—now need to work with immigration counsel to ensure proper protocols are put into place to spare employees from unnecessary risk and to preserve smooth business operations. Although the litigation over the travel ban will now continue in the lower court—as today's decision simply swept away an injunction that had blocked its immediate enforcement—you should operate under the assumption that this ban will continue for an indefinite timeframe.

How Did We Get Here?

The third version of Trump's Presidential Proclamation, sometimes known as Travel Ban 3.0, is President Trump's third executive action limiting travel and immigration from certain countries. His original travel ban came just seven days after his inauguration in January 2017, and was quickly blocked by a federal judge in Seattle.

For those opposing the president's actions, the most troubling aspect was the alleged anti-Muslim bias inferred from statements and tweets by the president and members of his administration both during his campaign and after taking office. The challengers argued that such statements evidenced that the travel ban was designed to exclude Muslims and "plainly runs afoul of the Establishment Clause," which prohibits the government from favoring one religion over another.

On this issue, the administration argued that the Court should look at only the ban's "official objective"—protecting national security—to determine whether it violated the Establishment Clause. So long as the president provides a "facially legitimate and bona fide reason" for his action, the administration contended, courts should "neither look behind the exercise of that discretion, nor test it by balancing its justification" against the purported constitutional violation.

The president issued a second travel ban on March 6, 2017, which was likewise blocked by federal judges in both Hawaii and Maryland. The Courts of Appeal for the 9th and 4th Circuits, respectively, upheld the injunctions. In June 2017, the Supreme Court issued a partial stay of the injunctions permitting portions of the ban to take effect, but agreed to hear the consolidated cases challenging the second executive order during its 2017-2018 term.

On September 24, 2017, the President issued Travel Ban 3.0, this time as a Presidential Proclamation, the result of a worldwide review conducted jointly by the Departments of Homeland Security, State, Defense, and Justice. Unlike its predecessors, the third travel ban is indefinite and covers individuals from Iran, Libya, Syria, Yemen, Somalia, North Korea, and Venezuela—with travel and immigration restrictions specific to each country (it originally also included Chad, but that country was removed from the travel ban by the White House after finding it had met "baseline" security standards). Given that this new third version superseded the previous action, the Supreme Court saw no need to rule on the second version of the travel ban and tossed the case from its docket.

Like the previous versions, however, Travel Ban 3.0 was challenged in court. The administration argued that this version did not violate the Constitution's Establishment Clause because it was created after a review of reports from several federal agencies, all of which concluded that it was in the interest of national security to restrict immigration from the seven countries set forth in the ban. Despite this new line of argument, a federal court also blocked Travel Ban 3.0 from taking effect. On January 19, the Supreme Court agreed to wade into the conflict once more and accepted a challenge to this third version. The Court heard oral arguments on April 25, and issued its long-awaited ruling today, the second-to-last day of the 2017-2018 Supreme Court term.

Court Unwilling To Second Guess President On Issues Of National Security

In today's 5-4 decision authored by Chief Justice Roberts, the Supreme Court largely agreed with the administration's arguments and overturned the injunction blocking the Proclamation from taking effect. The Court began its analysis of Travel Ban 3.0 by acknowledging that Congress granted the president significant authority to suspend entry of any "alien" or "class of aliens" whom he finds would be "detrimental to the interests of the United States." Under the Immigration and Nationality Act (INA), the president may do so for as long as deemed necessary and with "any restrictions" he deems appropriate. This, the Court held, entitles the president to a considerable amount of deference with respect to how he crafts immigration and national security policy.

The Court noted that Travel Ban 3.0 was the result of a multi-agency review process that demonstrated deficiencies in the information shared by certain foreign governments and identified other risk factors, which negatively impact the U.S. government's ability to screen and vet citizens of those countries who apply for entry into the country. This lack of cooperation was sufficient, in the Court's eyes, to support the determination that admission of people from those countries would be "detrimental to the interests of the United States."

Having found that Travel Ban 3.0 was the result of "a world-wide multi-agency" review conducted by the Department of Homeland Security and others, the Court concluded that President Trump's restrictions were a lawful exercise of his authority. As the Court noted, the INA "exudes deference to the President in every clause" and "vests the President with 'ample power' to impose entry restrictions." Thus Travel Ban 3.0 "falls well within" INA's delegation of authority to the President.

The Court, however, did not agree with the administration's argument that the Court could only review Travel Ban 3.0's "official objective" and not consider the president's anti-Muslim statements. Instead—and in a departure from prior precedent—the Court assumed that it "may look behind the face" of Travel Ban 3.0 and consider the evidence of anti-Muslim animus. Nevertheless, the Court ruled that it will uphold a challenged policy "so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." The Court therefore held that "because there is persuasive evidence that [Travel Ban 3.0] has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification."

In the absence of facially irrational executive action, the Court was unwilling to second-guess the president's exercise of powers delegated to him by Congress. Therefore, it upheld the executive action, which can once again be enforced immediately. Although the Court acknowledged that the challengers believed Trump's statements struck at the fundamental standards of respect and tolerance, it concluded that "the issue before us is not whether to denounce the statements. 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 doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself."

What Do Employers Need To Know?

The Supreme Court's opinion is the latest—and most definitive—word to date in the 17-month saga concerning the legality of one of President Trump's main objectives. Given that it can now be enforced effective immediately, employers should caution their workers from the affected countries regarding unnecessary travel outside of the U.S. 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. For now, you should assume the ban will continue to be in effect for the foreseeable future.

You should also work with immigration counsel to identify employees who are nationals of banned countries who may be affected by this order. If the employees are abroad and have not previously been impacted by the prior travel bans, they should return immediately. If an employee is in the U.S. and is reaching the visa expiration date, you should take steps to extend the employee's stay in the U.S. and advise the employee to avoid travel abroad. You should also consider sponsoring affected employees who are on temporary work visas for permanent residence in the U.S.

You should advise foreign national employees in the U.S. to carry originals or clear copies of legal authorization to be in the U.S. at all times (e.g., copies of the identifying page of their passports, visa stamps and I-94 electronic cards, Permanent Resident Cards, Employment Authorization Cards, Travel Documents, Re-entry Permits, etc.). Also, you should instruct employees to cooperate and present evidence of their U.S. immigration documentation and legal status if they are stopped by a U.S. Immigration and Customs Enforcement agent. Such foreign nationals should also consider consulting with an immigration attorney before signing any forms or other paperwork presented by the Department of Homeland Security or the Department of State.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions