On June 26th, 2018, the Supreme Court upheld President Trump’s third travel ban in its entirety. In a five-to-four decision, split respectively between the conservative and liberal justices, the Court pronounced that the president has the power to ban the entry of certain groups of people – a power delegated to the Office of the President by Congress in the Immigration and Nationality Act (INA). The Court further cited numerous instances in which presidents have used the power delegated to them to enact similar travel bans, albeit with language and reasoning far less broad than that in the travel ban presently before them.
Writing for the majority, Chief Justice John Roberts reiterated that the president has ample statutory authority to make national security judgments in the realm of immigration, and rejected a constitutional challenge to the ban. The decision was remanded to the lower courts. In his dissent, Justice Stephen Breyer, joined by Justice Elena Kagan, welcomed the remand to the lower courts as an opportunity to explore the constitutional challenge more fully, stating that the evidence already adduced is “a sufficient basis to set the Proclamation aside” under the Establishment Clause.
Justice Sonia Sotomayor, joined in her searing dissent by Justice Ruth Bader Ginsburg, denounced the decision of the majority as no better than the decision in Korematsu v. United States, a 1944 Supreme Court decision that endorsed the forced detention of Japanese-Americans during World War II. While the majority opinion took the opportunity to officially overturn Korematsu, by upholding the travel ban, Justice Sotomayor wrote, the Court “merely replaces one ‘gravely wrong’ decision with another.”
As the ban has now been upheld, we advise all individuals subject to the ban to review their options immediately and contact us should they wish to discuss travel or other concerns. Current guidance can be found at the end of an AILA memo on the impact of this decision (see page 23 onward): https://www.aila.org/infonet/practice-alert-proclamation-sets-forth-rules
On July 9th, 2018, President Trump announced the nomination of Brett Kavanaugh, a federal judge from the U.S. Court of Appeal for the D.C. Circuit, to replace Justice Anthony Kennedy upon his retirement from the Supreme Court.
Appointed by President George W. Bush in 2006, Kavanaugh has been a D.C. Circuit judge for twelve years and has written over 300 opinions. Notably, Kavanaugh is only 53 years old, meaning that his appointment would likely span decades on the bench, as Supreme Court justices are appointed for life. Kavanaugh is a Washington insider with deep roots in politics. He was a member of Lawyers for Bush-Cheney during the 2000 campaign and was a regional coordinator for the campaign. He also participated in the Florida recount in the 2000 election that put Bush in office. Kavanaugh served as White House counsel to Bush and later as a staff secretary until 2006 when he was appointed to the federal bench.
If Kavanaugh’s nomination is confirmed by the Senate, he would be a more conservative replacement than Justice Kennedy. Unlike his known conservative stances on other controversial issues such as reproductive rights, Kavanaugh’s position on immigration matters is not well-documented, and how his appointment would affect immigration policy remains to be seen.
The August 2018 visa bulletin is virtually unchanged from July 2018. EB-1 dates for China and India remain at January 1st, 2012. EB-2 dates for China and India have advanced, with China moving up to March 1st, 2015 and India moving up to March 15th, 2009. EB-3 for China is at July 1st, 2014 and EB-3 India at January 1st, 2009. EB-3 Philippines remains at January 1st, 2017.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **