From Smirking Chimp
The Supreme Court's opinion in Trump v. Hawaii, affirming Donald Trump's Muslim ban, allows 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 mentions the US'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, as well as 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 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 this week 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 other six countries have to undergo additional security checks. Iranian students are exempted from the ban. The ban also forbids Venezuelan government officials and their families from traveling to the US.
More than 150 million people, roughly 95 percent of them Muslim, are affected by the ban.
Two prior iterations of the ban restricted travel of citizens from only Muslim-majority countries. After federal courts struck them down, Trump cosmetically added Venezuela and North Korea to avoid charges of religious discrimination.
As Justice Sonya Sotomayor, joined by Ruth Bader Ginsburg, wrote in her dissent, "it is of no moment" that Trump included "minor restrictions" on North Korea and Venezuela -- two non-Muslim-majority countries. Travel by North Korean nationals was already restricted and the ban only bars travel by Venezuelan officials and their families.
Court Did Not Address International Law Claims
All of the justices on the Supreme Court ignored significant international law arguments in their majority and dissenting opinions in spite of an amicus brief signed by 81 international law scholars, including this writer, and a dozen non-governmental organizations. The amicus brief drew attention to the travel ban's violation of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, both of which the United States has ratified.
Ratification of a treaty not only makes the United States a party to that treaty, its provisions also become part of US domestic law under the Supremacy Clause of the Constitution, which says treaties "shall be the supreme law of the land."
Customary international law arises from the general and consistent practice of states. It is part of federal common law and must be enforced in US courts, whether or not its provisions are enshrined in a ratified treaty. Courts have a duty to rein in federal executive action which conflicts with a ratified treaty.
In Trump v. Hawaii, the high court concluded that the ban did not violate the Immigration and Nationality Act. We argued in our amicus brief: