The “Travel Ban”: Trump v. Hawaii

Entering the week of June 24, the Justices had yet to release decisions in six argued cases. With the release of only two such cases Monday morning (in which the Court left three highly-charged cases out to dry), it was evident that the Court would not conclude its term with a whimper. Indeed, the Justices did not fail to deliver on this notion, releasing opinions yesterday morning in National Institute of Family & Life Advocates v. Becerra (No. 16-1140), a First Amendment challenge to California’s Reproductive FACT Act, and perhaps the most anticipated ruling of the term, Trump v. Hawaii (No. 17-965), the multi-faced challenge to President Trump’s “travel ban” proclamation from September of 2017.

After the Court’s release of its decision in National Institute of Family & Life Advocates v. Becerra (see my review of the opinion here), Chief Justice Roberts announced that he had the decision in Trump v. Hawaii. By a 5:4 tally, the Supreme Court upheld President Trump’s Proclamation No. 9645 of September 27, 2017, which restricted immigration of certain aliens from eight specific countries. This was the third iteration of the immigration order. For the Court, Roberts was joined by Justices Kennedy, Thomas, Alito, and Gorsuch.

Case Background

“[S]ubject to categorical exceptions and case-by-case waivers,” the Proclamation suspended the entry of certain categories of citizens in eight countries (those being Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen) that declined to share “adequate information” with the U.S. or that presented risks to national security (§ 2). Those certain categories of citizens were defined as individuals who were: (1), outside of the U.S. when the Proclamation went into effect; (2), lacking a valid visa when the Proclamation went into effect; or (3), unable to qualify for a visa or valid travel document as defined in § 6(d) of the Proclamation. The exceptions and waivers are elaborated on in sections 3(b) and 3(c), respectively.

The Proclamation cited multiple resources for justifying its provisions, including, but not limited to: (1), the “policy of the United States to protect its citizens from terrorist attacks and other public-safety threats;” (2), the importance of foreign governments’ “information-sharing and identity management protocols . . . for the effectiveness of the screening and vetting protocols and procedures of the United States;” (3), the directives under Executive Order 13780 mandating “a worldwide review” to identify whether citizens of foreign countries present “security or public-safety threat[s];” and, (4), evaluations and data collections from the Department of Homeland Security (DHS) for foreign countries.

The State of Hawaii, along with the Muslim Association of Hawaii and three individuals whose relatives were affected by the entry restrictions, filed suit. The United States District Court for the District of Hawaii issued a preliminary injunction enjoining the enforcement of the restrictions. The Trump Administration issued a new order, which the United States Court of Appeals for the Ninth Circuit also struck down, affirming the decision of the District Court. After a subsequent redrawing of the order expired in late 2017, the Trump Administration promulgated the newest installation, which Hawaii challenged here in the Supreme Court. The Supreme Court granted certiorari, agreeing to review the decision of the Ninth Circuit to strike down the immigration ban.

The Majority Opinion

After introductions featuring an explanation of the Proclamation and the case’s procedural history, Chief Justice Roberts begins his adjudication by rebutting Hawaii’s argument that the Court cannot rule on the status of the Proclamation under the Immigration and Nationality Act of 1965 (“INA”), 8 U.S.C. § 1151 et seq. (It would be worth noting that if the Court determined that it was unable to adjudicate this case based on the language contained in the INA, the Ninth Circuit’s ruling would stand and the Proclamation would accordingly be struck down pending further developments.)

Roberts then turned to Hawaii’s claim that the Proclamation exceeds the President’s authority to restrict immigration as set by federal immigration laws. Roberts writes that the “INA established numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for the visa.” Pursuant to the Nondelegation Doctrine under Article 1, Section 1 of the Constitution, “Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances.” Under 8 U.S.C. § 1182(f), the President may “‘suspend the entry of all aliens or any class of aliens’ whenever he ‘finds’ that their entry ‘would be detrimental to the interests of the United States.'”

Roberts disagrees with Hawaii when the state argues that the “Proclamation is not a valid exercise of the President’s authority,” holding instead that “[b]y its plain language, § 1182(f) grants the President broad discretion to suspend the entry of aliens into the United States.” He further asserts that Trump “lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.”

§ 1182(f) states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Under the plain wording of the statute, and indeed “in every clause,” § 1182(f) “exudes deference to the President” and “entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The only requirement is that the President determine that the immigration of the aliens would harm the interests of the United States. Roberts affirms that the “President has undoubtedly fulfilled that requirement here” by ordering and reviewing the evaluations of the DHS and by promulgating “extensive findings describing how deficiencies in the practices of select foreign governments . . . deprive the Government of ‘sufficient information to assess the risk [those countries’ nationals] pose to the United States.'”

Roberts then negates Hawaii’s claim that the suspension of entry of aliens violates § 1152(a)(1)(A), which states that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” He does so by distinguishing between § 1152(a), which simply defines all aliens who are admissible  into the United States, and § 1152(a)(1)(A), which mandates that the Government cannot discriminate in issuing visas to those have already been deemed admissible under § 1152(a). In other words, “[t]he distinction between admissibility—to which § 1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the ‘issuance’ of ‘immigrant visa[s],’ without mentioning admissibility or entry” (emphasis added).

Finally, Roberts addresses Hawaii’s claim that the Proclamation violates the Establishment Clause of the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion.” Hawaii contended that “the Proclamation violates this prohibition by singling out Muslims for disfavored treatment.” Plaintiffs cited numerous statements and communications by the President himself, as well as his advisers and campaign staff. For example, Trump issued a campaign statement during his candidacy that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

Roberts begins his assessment by citing the President’s historical “extraordinary power to speak to his fellow citizens on their behalf,” and then contrasting the use of this power by past Presidents with its use by President Trump. For example, George Washington in 1790 relayed to the newly-established Hebrew Congregation of Newport, Rhode Island that the government “gives to bigotry no sanction, [and] to persecution no assistance.” In 1957, Dwight D. Eisenhower proclaimed at the opening of the Islamic Center in Washington that “America would fight with her whole strength for your right to have here your own church.”

Subtly contrasting the statements of Washington and Eisenhower to those of President Trump, Roberts acknowledges that “[y]et it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have . . . performed unevenly in living up to those inspiring words.” Here however, Roberts begins to make the careful distinction that is central to his argument: “[T]he issue before us is not whether to denounce [President Trump’s] statements.” Rather, the issue is to specifically determine whether the Proclamation is “neutral on its face, addressing a matter within the core of executive responsibility.” In doing so, the Court must not only consider the President’s particular statements, “but also the authority of the Presidency” to issue the Proclamation itself.

Supreme Court precedent provides that “the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control'” (quoting Fiallo v. Bell, 430 U.S. 787 (1977), at 792). Therefore, the Court may uphold the Proclamation “so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” Roberts finds that it does so: “Because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.”

Roberts elaborates on that “persuasive evidence” by citing the Proclamation’s reliance on legitimately restricting the ability of foreign nationals to immigrate because of their inability to be vetted, and its persuading of other nations to improve their vetting practices. Roberts notes that the text “says nothing about religion,” and that the policy “covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” The Proclamation also “reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”

Roberts disagrees with Hawaii’s claim that the “policy is overbroad and does little to serve national security interests.” Roberts first notes that it is not within the Court’s purview to “substitute our own assessment for the Executive’s predictive judgments on such matters,” before asserting that multiple “features of the entry policy support the Government’s claim of a legitimate national security interest.” Most notably, he references the Proclamation’s exceptions and waiver programs. He writes that “the Proclamation includes significant exceptions for various categories of foreign nationals,” including permitting nationals “from nearly every covered county” to travel on nonimmigrant visas, and “exempt[ing] permanent residents and individuals who have been granted asylum.” Further, the waiver program instructs that consular officers must examine whether denying the foreign national entry “would cause undue hardship,” whether permitting entry “would not pose a threat to public safety,” and whether permitting entry “would be in the interest of the United States” (see § 3(c)(i) of the Proclamation). The policy also deems a waiver appropriate when “the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations” (see § 3(c)(iv)).

As a result, Roberts concludes that the Government has indeed “set forth a sufficient national security justification” in issuing the Proclamation. Therefore, the grant of the preliminary injunction is reversed and the case is remanded to the lower court for further proceedings in light of the opinion.


Justice Kennedy also wrote a concurring opinion. He wrote that the Court ought to make a “further observation” that although “there are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention,” this does not at all mean that “those officials are free to disregard the Constitution and the rights it proclaims and protects.” It is worth noting that by making these statements, Justice Kennedy does not endorse limitations on judicial review of statements and actions of Government officials. The Supreme Court is a reactionary adjudicating body. This implicitly means that the Court cannot of its own accord (and within the bounds set forth by both Article III of the Constitution and the rules governing the operations of the Judiciary Branch) go out of its way to block a statute, statement, or anything of the like on the grounds that it “may be constitutional if brought before the Court.” Rather, as the reactionary principle inherently necessitates, the Court may only condemn such actions or statements when a constitutional challenge is properly filed and the Court adjudicates this challenge through proper legal proceedings. Therefore, Kennedy indirectly pronounces that the Supreme Court cannot itself declare “statements and actions of Government officials” as unconstitutional. Rather, the Court must wait until some entity challenges those statements or actions in court. In other words, his statement may be adequately rephrased as: “there are numerous instances in which the statements and actions of Government officials are not yet subject to judicial scrutiny or intervention.” Thus, the Court may scrutinize such statements or actions and determine whether they must react to their usage if the statements or actions are challenged before the courts.

Justice Thomas also concurred. He argues that there are “several more” problems with the plaintiffs’ claims than the majority opinion discusses. He also questions the authority of district courts, which have limited jurisdiction, to issue nationwide injunctions that affect every individual in the nation, including individuals who are well outside the particular district court’s dominion. Such injunctions “take a toll on the federal court system,” as they “prevent[] legal questions from percolating through the federal courts, encourage forum shopping, and mak[e] every case a national emergency for the courts and for the Executive Branch.” He concludes this point by asserting that “universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”

Dissents: One Timid, One Pointed

Justice Breyer, with whom Justice Kagan joined, filed a dissenting opinion. Breyer opines that the Proclamation’s programs of exemptions and waivers are not being applied by the Government as written. He cites documents, letters, and even the practices of State Department officials that run contrary to the Proclamation’s mandates for determining exceptions and waivers. Most notably, he references a pending case in the Eastern District of New York in which a U.S. consular official testified that “he and other officials do not, in fact, have discretion to grant waivers.” It is worth noting that Breyer unfortunately does not discuss whether the official has the authoritative standing within the State Department to issue such waivers, which would undoubtedly strengthen his argument. Breyer concludes that the case ought to be sent back for further proceedings, but that the injunction should be left in effect while the proceedings unfold.

If one were to categorize Justice Breyer’s dissent as somewhat timid, Justice Sotomayor’s dissent was markedly sharper. In her 28-page opinion (joined by Justice Ginsburg), Sotomayor begins by attacking the majority opinion’s failure to safeguard the “promise of religious liberty” embedded in the First Amendment. She pointedly opines that the majority opinion “leaves undisturbed” a policy that was specifically advertised as a “complete shutdown of Muslims entering the United States” because the policy “masquerades behind a façade of national security concerns.” In a fiery rebuke to the majority’s ruling, Sotomayor asserts that it “ignor[es] the facts, misconstru[es] our legal precedent, and turn[s] a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”

She cites Supreme Court precedent holding that “[t]he ‘clearest command’ of the Establishment Clause is that the Government cannot favor or disfavor one religion over another” (quoting Larson v. Valente, 456 U.S. 228, 244 (1982)). She argues that the majority’s “highly abridged account” fails to recall many of the “statements and background events that form the basis of plaintiffs’ constitutional challenge.” In reviewing these statements in light of the Proclamation’s original intent, she disagrees with the majority, instead stating that “a reasonable observer would conclude that the Proclamation was driven by primarily anti-Muslim animus, rather than by the Government’s asserted national-security justifications.” Sotomayor further portends that the majority “incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establishment Clause claim.”

In her conclusion, Sotomayor moves to say that:

In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty.

Her most notable example of these “tragic mistakes of the past” is her comparison between the majority opinion here with the majority opinion in Korematsu v. United States, 323 U.S. 214 (1944). Korematsu found constitutional an Executive Order passed toward the end of World War II that mandated the internment of Japanese Americans. “In Korematsu,” Sotomayor writes, “the Court gave ‘a pass to an odious, gravely injurious racial classification’ authorized by an executive order” (quoting Justice Ginsburg’s dissent in Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), at 275). She then compares Korematsu‘s similarities to the case at bar, arguing that “[a]s here, the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion,” which was “rooted in dangerous stereotypes about, inter alia, a particular group’s . . . desire to harm the United States.” She emphatically writes in her conclusion that:

By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.

It ought to be stated, however, that Justice Sotomayor walks a fine line by comparing the case at bar (which involves a policy barring foreign aliens from entering the United States) with Korematsu (a policy ordering the internment of Japanese American citizens who already reside within the United States). Indeed, as Chief Justice Roberts notes in his majority opinion, “[w]hatever the rhetorical advantage the dissent may see” in referencing it, “Korematsu has nothing to do with this case.” Roberts affirms that the forced extradition of U.S. citizens to internment camps merely based on race “is objectively unlawful and outside the scope of Presidential authority.” But he continues that it is “wholly inapt to liken that morally repugnant order to a facially neutral policy denying foreign nationals the privilege of admission,” and that this “entry suspension is . . . well within executive authority and could have been taken by any other President.”

Whatever the applicability of Korematsu is to the case at hand, the ruling in Trump v. Hawaii opens the door to questions regarding future cases against government officials vis-à-vis the Establishment Clause of the First Amendment. Will the ruling create a significant hurdle to states bringing challenges against the President’s discretion in regulating matters of national security? Will the ruling create a narrow, specific exception for foreign-policy cases in future domestic policy disputes? The implications of these questions, and the answers themselves, remain to be seen.

For a review of the Court’s earlier opinion in National Institute of Family and Life Advocates v. Becerra, see here.

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