June 26, 2018

Supreme Court Decides Trump v. Hawaii

On June 26, 2018, the U.S. Supreme Court decided Trump v. Hawaii, upholding President Trump’s “travel ban,” which restricts admission to the United States for citizens of certain countries.

Presidential Proclamation No. 9645 “placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate,” following a worldwide review. The restrictions vary by country. The proclamation “suspends entry of all nationals” of North Korea and Syria, prohibits large amounts of travel from Iran, Libya, and Yemen, substantially restricts travel from Somalia, and limits travel by certain Venezuelan government officials and their families. It allows for case-by-case hardship waivers of these restrictions. The proclamation provides for ongoing review of these countries’ information-sharing policies, and ongoing reports to the President on that topic. Although the Proclamation initially listed Chad as well, that country was removed after “the President ... determined that Chad had sufficiently improved its practices.” Before his election, President Trump had 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,” and he reaffirmed his position after becoming President.

Hawaii, the University of Hawaii, and several citizens of Hawaii sued challenging the Proclamation’s validity. The district court prohibited the government from enforcing the Proclamation, and the Ninth Circuit affirmed. It held “that the Proclamation conflicts with” the Immigration and Nationality Act “by addressing matters of immigration already passed upon by Congress,” and “that the entry restrictions also contravene” the INA’s “prohibition on nationality-based discrimination in the issuance of immigrant visas.”

The Supreme Court reversed by a five to four vote. Assuming without deciding that the plaintiffs’ claims are justiciable, the Court first held that “the Proclamation is squarely within the scope of Presidential authority under the INA.” It noted that the INA “entrusts to the President the decisions whether and when to suspend entry; whose entry to suspend; for how long; and on what conditions,” with “the sole prerequisite ... that the President find that the entry of the covered aliens would be detrimental to the interests of the United States.” The Court again assumed without deciding that the INA requires the President “to explain that finding with sufficient detail to enable judicial review,” but held that “the Proclamation falls well within this comprehensive delegation,” based on the President’s “extensive findings” regarding national security. The Court noted that the Proclamation is far longer and more detailed than admissibility suspensions by previous Presidents.

The Court rejected the plaintiffs’ other challenges to the Proclamation that were based on the text of the INA. It held that the statutory authorization for the President to “suspend entry” “does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions,” and that the INA’s authorization for restrictions on entry by a “class” of aliens “comfortably encompasses a group of people linked by nationality,” and that the INA does not require entry restrictions to be tailored such that the restricted “class cannot be ‘overbroad.’” And the Court held that, while the INA prohibits nationality-based discrimination “in the issuance of an immigrant visa,” that is not “a constraint on the criteria for admissibility,” which are separate from the visa-eligibility criteria. The Court noted that previous Presidents have restricted entry on a country-by-country basis.

The Court also found the Proclamation compatible with the INA’s “statutory structure and legislative purpose.” The Court noted that the government could already “deny visas in individual cases when an alien fails to carry his burden of proving admissibility,” but held that “the INA certainly does not require that systemic problems such as the lack of reliable information be addressed only in a progression of case-by-case admissibility determinations.” And while the INA’s Visa Waiver Program applies to “38 countries that have entered into a rigorous security partnership with the United States,” that “did not implicitly foreclose the Executive from imposing tighter restrictions on nationals of certain high-risk countries.”

The Court also held that the Proclamation does not violate the Constitution’s Establishment Clause by discriminating against Muslims. It first held that the individual plaintiffs had standing to pursue this claim, based on “the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country.” But on the merits, the Court noted that the “exclusion of foreign nationals is ... largely immune from judicial control.” It assumed, again without deciding, “that we may look behind the face of the Proclamation to the extent of applying rational basis review” under the Establishment Clause. The Court upheld the Proclamation based on “persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.” The Court noted that claims of religious animus are belied by the Proclamation’s ongoing review process, by its various “carveouts for nonimmigrant visas” which cover “the majority of visas issued to nationals from the covered counties,” and by its individualized waiver program.

Finally, although it did not affect the holding, the Court stated that its World-War-II era decision in Korematsu v. United States, which upheld the internment of U.S. citizens of Japanese descent, “was gravely wrong the day it was decided, has been overruled in the court of history, and ... has no place in law under the Constitution.”

Chief Justice Roberts delivered the opinion of the Court. Justice Kennedy and Justice Thomas filed concurrences. Justice Breyer filed a dissent joined by Justice Kagan, and Justice Sotomayor filed a dissent joined by Justice Ginsburg.

Download Opinion of the Court.

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