"The Immigration and Nationality Act and other statutes must be read in harmony with these international legal obligations pursuant to the Supremacy Clause of the Constitution and long established principles of statutory construction requiring acts of Congress to be interpreted in a manner consistent with international law, whenever such a construction is reasonably possible."
But the Court did not construe the legality of the travel ban in light of US treaty obligations and customary international law.
The primary thrust of the ban is to prohibit Muslims from entering the United States and thus constitutes religious discrimination. By singling out specific countries for exclusion, the ban also makes a prohibited distinction on the basis of national origin.
Muslim Ban Violates International Covenant
The International Covenant on Civil and Political Rights prohibits distinctions based on religion or national origin, which have "the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing of human rights and fundamental freedoms," the United Nation Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, has said.
Although the International Covenant on Civil and Political Rights does not generally "recognize a right of aliens to enter or reside in the territory of a State party ... in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise," the Human Rights Committee opined.
The International Covenant on Civil and Political Rights prohibits discrimination against the family. "The family is the natural and fundamental group of society and is entitled to protection by society and the State." Immigrants and refugees flee their countries of origin and come to the United States to reunify with their families. The covenant protects them against discrimination based on religion or national origin. They need not be physically present in the United States to enjoy these protections.
The non-discrimination provisions of the International Covenant on Civil and Political Rights also constitute customary international law. In 1948, the United States approved the Universal Declaration of Human Rights, which is part of customary international law. The declaration forbids discrimination based on religion or national origin, guarantees equal protection of the law, and shields family life against arbitrary interference.
Ban Violates Convention Against Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination also prohibits discrimination based on religion or national origin and doesn't confine its non-discrimination provisions to citizens or resident noncitizens. While the convention "does not speak specifically to restrictions on entry of nonresident aliens," our amicus brief states, "the general language of [the Convention Against Racial Discrimination] expresses a clear intention to eliminate discrimination based on race or national origin from all areas of government activity."
States parties to the convention "shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination." Parties are required to outlaw speech that stigmatizes or stereotypes noncitizens, immigrants, refugees and people seeking asylum.
Evidence of the Discriminatory Nature of the Travel Ban
Even though the Supreme Court majority held that the ban did not violate the Establishment Clause of the First Amendment, much evidence exists to the contrary.
The Establishment Clause says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." That means "one religious denomination cannot be officially preferred over another," according to Supreme Court case law.
After quoting a few of Trump's anti-Muslim statements, Roberts noted, "the issue before us is not whether to denounce the statements" but rather "the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility." Roberts added, "we must consider not only the statements of a particular President, but also the authority of the Presidency itself."
Roberts wrote that the Court could consider the president's statements "but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds." Courts must give great deference to the president in immigration matters and will uphold his policy if it has any legitimate purpose, Roberts noted. "The entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility." The text doesn't specifically mention religion, so Roberts wrote it was "neutral on its face."
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