Mark Pestronk
Mark Pestronk

Q: At the end of June, the U.S. Supreme Court upheld President Trump's revised executive order suspending the entry of all citizens of certain majority-Muslim countries. Friends and acquaintances who live in other countries have told me that they are not particularly inclined to apply for a visa to visit the U.S. as tourists because they are afraid Trump may suddenly slap on a similar ban if he is feuding with their country. I have assured them that this will not happen and that this is a one-time decision that has nothing to do with most countries' citizens. However, I wonder: could the president lawfully prohibit all entry from a given country for political or religious reasons? If so, won't this possibility have a chilling effect on incoming tourism?

A: The president could lawfully suspend or prohibit, temporarily or permanently, entry from any country for any reason allegedly related to the interests of the U.S. That is the lesson from the Supreme Court's decision.

The statute under which the president issued the ban simply states that the president may restrict the entry of any aliens whenever he finds that their entry "would be detrimental to the interests of the United States." Under the Supreme Court's test, any such ban would be upheld as long as it had some relationship to some policy that allegedly protects the interests of the U.S.

So the president could dream up a pretext for a ban, and the court would uphold it as long as the ban had some connection to the pretext. The ban must only be "plausibly related to the government's stated objective." The court will not delve much into the validity of the objective.

Where the court has struck down a presidential order, it "lacked any purpose other than a bare desire to harm a politically unpopular group."

However, in this case, the court held that the ban "is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority countries are limited to those that were previously designated by Congress or prior administrations as posing national security risks."

With regard to the president's anti-Muslim statements, the court held that such extrinsic evidence may be "considered," but "the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." In other words, the president's statements counted, but the president's authority counted more.

The plaintiffs had noted that the law governing visa issuance states that "no person shall receive any preference or priority to be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence." However, the court said this statute was irrelevant because the president's authority to make sweeping admissibility determinations had nothing to do with visa criteria.

The chief justice's opinion noted several historical instances in which a president banned all entry from a foreign country on various pretexts. For example, in 1986, President Reagan issued an "emergency" ban on all Cuban nationals in order to apply pressure on the Cuban government, and in 2014, President Obama banned Russians in certain occupations following Russia's annexation of Crimea and invasion of Ukraine.

I have no doubt that the Supreme Court's decision will have a chilling effect on incoming tourism. On any given day, the president is feuding with at least one country. It could happen to any country anywhere.

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