On December 4, 2017, the U.S. Supreme Court allowed the third version of the President's travel ban, which limits the entry of citizens from eight countries, to go into effect. The White House claimed the Supreme Court decision as a victory, with spokesman Hogan Gidley saying, “The proclamation is lawful and essential to protecting our homeland. We look forward to presenting a fuller defense of the proclamation as the pending cases work their way through the courts.”
While the domestic implications of the Supreme Court’s decision will unfold in the next few weeks, the foreign policy implications will be widespread, and potentially damaging to U.S. interests and reputation.
Before delving into the foreign policy implications, however, it is important to note two important aspects of the U.S. Supreme Court that determine the impact of its decisions on U.S. foreign policy. First, even though the judiciary is constitutionally designed to check against executive power expansion, past administrations, along with the Court itself, have taken a narrow view of the Court's authority when it comes to interpreting international laws and foreign policy. Second, and most importantly, the Supreme Court has interpreted the Case or Controversy Clause of Article III of the Constitution in a way that prohibits the courts from issuing advisory opinions. The Court’s decision on the travel ban, however, is to stay the district court’s preliminary injunction, which is a temporary maintenance of the status quo. The Court has decided to the let the ban be implemented while the merits of the ban continued to be argued in lower courts.
Yet, even though the Court’s decision does not necessarily mean that the ban will ultimately be upheld, the decision has had three immediate—and negative—foreign policy implications.
The first, and most obvious, implication is the sustainment of the faulty link between immigration and terrorism. Cato’s Alex Nowrasteh and David Bier have written extensively on the flawed logic and harmful effects of the travel ban on immigration to the United States. One of the unintended consequences of the Court’s decision was a reinforcement of President Trump’s troublesome rhetoric on immigration, highlighted when the president commented on the most recent failed terrorist attack in New York City. President Trump argued that the current immigration system is, “incompatible with national security” and that Congress must end “chain migration,” which refers to the ability of U.S. citizens to sponsor their siblings for U.S. visas, even though there is little evidence indicating that such a measure will make America safer.
The second implication of the Supreme Court decision is connected to the growing anti-Muslim sentiment within the United States, which has entered the Trump administration’s foreign policy in the form of the travel ban and policy on refugees. Six out of the eight banned countries are Muslim-majority (Chad, Iran, Libya, Syria, Somalia, and Yemen) and the president has often referred to the ban as the “Muslim Ban.” Similarly, the president has stated that his administration will prioritize Christian refugees. While the Supreme Court decision is not a final ruling on the merits, the Trump administration has called it a victory. Thus, the Trump administration appears to have taken the Court’s decision as a signal that its third attempt at a travel ban will ultimately survive judicial review.
The third, and final, implication of the Court decision is the worsening of U.S. relations with both Iran and North Korea at a time when tensions are already high. Anti-Americanism is steadily on the rise in Iran, while relations with North Korea have been escalating to a point where some analysts fear an onset of a nuclear war.
So for Christmas, if I could have one wish granted, it would be to end the travel ban in its entirety. Not only is the ban based on a false narrative and poor empirical analyses, but it also fails to make the United States more secure. Furthermore, it constantly undermines U.S. interests abroad.