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.”