The Supreme Court majority ignored two treaties and customary law in upholding Donald Trump’s latest travel ban, which the president himself said targeted Muslims, reports Marjorie Cohn.
By Marjorie Cohn
The Supreme Court’s opinion last month in Trump v. Hawaii, affirming Donald Trump’s Muslim ban, has permitted the United States to act in flagrant violation of international law.
Under the guise of deferring to the president on matters of national security, the 5-4 majority disregarded a litany of Trump’s anti-Muslim statements and held that the ban does not violate the First Amendment’s Establishment Clause, which forbids the government from preferring one religion over another. Neither the majority nor the dissenting opinions even mentioned the U.S.’s legal obligations under international human rights law.
The travel ban violates two treaties to which the United States is a party: the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. It also runs afoul of customary international law.
Both of these treaties and customary international law prohibit the government from discriminating on the basis of religion or national origin. Trump’s Muslim ban does both.
Trump v. Hawaii “signals strongly that international law in general, and international human rights law in particular, no longer binds the United States in federal courts,” Aaron Fellmeth, professor at Sandra Day O’Connor College of Law, wrote me in an email. “Fortunately, it does not squarely hold that, but the effect may prove to be the same. For now, the Supreme Court appears determined to be complicit in U.S. human rights violations and cannot be relied upon as a check on the Executive Branch.”
The case that the Supreme Court ruled on involved the legality of Trump’s third travel ban. Issued by Trump in a “Proclamation” on September 24, 2017, the third iteration of the ban restricts travel by most citizens of Libya, Syria, Iran, Yemen, Chad, Somalia and North Korea. The ban forbids everyone from Syria and North Korea from obtaining visas. Nationals from the…