A divided court and a controversial travel ban: Trump v. Hawaii

Those following American politics will have heard of President Donald Trump’sProclamation No. 9645, a travel ban on nationals from eight foreign countries, including Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen.  On June 26, 2018, the controversial travel ban was fortified in a 5-4 decision by the Supreme Court in Trump v. Hawaii. (2018).


President Trump’s Executive Orders


On January 27, 2017, immediately after taking office, President Trump issued Executive Order No. 13769(EO-1) entitled “Executive Order Protecting the Nation from Terrorist Entry into the United States.”  EO-1 charged the Department of Homeland Security and other agencies to conduct a reviewof the information concerning foreign nationals seeking entry into the United States, as provided by their respective foreign governments.  While that review was being conducted, nationals from seven countries, Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, were suspended from entry into the United States for 90 days.


The president then revoked EO-1, replacing it with Executive Order No. 13780(EO-2). EO-1 and EO-2 are extremely similar, the main difference being that EO-2 did not include Iraqin the ban from entry.  After completion of the world-wide review,  President Trump issued Proclamation No. 9645, the executive order at issue in Trump v. Hawaii.


The Court only considered two of the Plaintiff’s arguments in their decision to uphold the travel ban


The Plaintiffs, the State of Hawaii, three individuals, and the Muslim Association of Hawaii, challengedthe travel ban on several grounds; however, in a majority opinion written by Chief Justice Roberts,  the Court only considered two of the Plaintiff’s arguments in their decision to uphold the travel ban.


First, the Plaintiffs unsuccessfully argued that the President lacked authority to issue the Proclamation under the Immigration and Nationality Act(INA).  This argument failedto persuade the Majority, as they concluded that the INA grants the President broad discretion to make decisions concerning the entry of aliens into the United States.  Under the INA, the President 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.” 1182(f). The exercise of this broad power is curtailed by only one requirement: that the entry of the aliens or class of aliens would be detrimental to the interests of the United States.


The Majority found that the President had “undoubtedly” met that requirement in the issuance of the Proclamation.  The President first directed a multiagency evaluationof every single country’s compliance with the information and risk assessment baseline.  Based on these findings, the President issued the Proclamationdescribing the risks associated with the lack of reliable information from certain foreign countries. The Majoritypointed out that the 12-page Proclamation was more detailed than any previous suspension order issued, including those issued by President Reagan and President Clinton. While the Plaintiffs also set forth other argumentsabout the legislative history, executive practice, and the structure of the INA, the Majority did not bite, focusing their decision on the plain meaning of Section 1182(f) of the INA.


Second, the Plaintiffs argued that the Proclamation was motivated by religious animosity towards Muslims, rather than actual concerns about national security, violating the Establishment Clause of the United States Constitution. The Majority chose to apply rational basis review, upholding the Proclamation so long as it is rationally related to its stated purposeof enhancing vetting processes and promoting public safety and national security by preventing terrorists from entering the country.  The Majority found these interests sufficient to pass rational basis review, focusing on several features of the policy.


On its face, the Proclamationsays nothing about religion, and the inclusion of Muslim-majority countries is limitedto countries designated as national security risks by Congress or prior administrations.  Further, the Proclamation was precededby the multiagency evaluation of every other country.  The Majority considered the factthat Iraq, Sudan, and Chad, three Muslim-majority countries, had been removed from the list.  The Proclamation also includedexceptions for several categories of foreign nationals, as well as a waiver program open to all the covered foreign nationals.  The Majority concludedthat these additional circumstances justified upholding the Presidential Proclamation, ultimately reversing and remanding the case to the United States Court of Appeals for the Ninth Circuit.


Justice Kennedy joined the majority opinion, but authored a separate opinion,emphasizing the importance of deference to the executive, and also focusing on the actions and statements of government officials.  Justice Thomas also joined the majority opinion and wrote his own concurring opinion.  His concurrence focusedon the issues surrounding nationwide injunctions and the Court’s jurisdiction to make decisions in these types of cases.


The government has yet to adopt waiver-related guidance


In a dissenting opinionjoined by Justice Kagan, Justice Breyer argued that the legitimacy of the Proclamation centered on the basis or purpose for issuing and enforcing the Proclamation.  While on its face, the Proclamation seems neutral and similar to those issued by other presidents, Justice Breyer consideredthat the statements made by the President and others suggested otherwise. In answering this question, Breyer focused on the applicationof the waivers and exemptions system.


The government has yet to adopt waiver-related guidance.  Moreover, the dissent listedfacts, figures, and other examples that showed reluctance and even refusal to exercise the waivers.  This evidence led Justice Breyer to the conclusion that this case should be sent back to the lower courts to consider these matters through litigation.  Still, if pressed to make a decisionon this issue without these additional findings, Justice Breyer and Justice Kagan stated that “we would find the evidence, including the presidential statements set forth in Justice Sotomayor’s dissenting opinion, we would find them sufficient to set the proclamation aside, and for these reasons with respect we dissent.”


Justice Sotomayor is “unwilling to throw the Establishment Clause out the window merely because the government invokes nebulous national security concerns”


Justice Sotomayor stands staunchly opposed to the decision issued by the majority, writing one of two dissents in the case.  In a dissenting opinion joined by Justice Ginsburg, Sotomayorsaw the stated governmental purpose of the Proclamation as a sham, looking to several of the various anti-Muslim statements made by the President during his campaign and once in office.  She argued that a reasonable observerwould easily find that the Proclamation was motivated by animosity towards Muslims, rather than the asserted national security purpose set forth in the Proclamation.  As Justice Sotomayor stated in the announcement of the opinion, she is “unwilling to throw the Establishment Clause out the window merely because the government invokes nebulous national security concerns.”


Justice Sotomayor also pointed out that the Majority opinion failed to even acknowledge their recent decision in Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Comm’n,which held that the official expressions of hostility to religion in a commissioners’ comments were inconsistent with the requirements of the Free Exercise Clause. Justice Sotomayor sees Masterpiece Cakeshopas indistinguishablefrom the present case, as both involve statements made by government officials that violate the fundamental principles of religious freedom and neutrality.  Yet, the Court reaches two different conclusions in these cases, demonstrating the Majority’s failure to accurately protect and apply these fundamental principles.


The nation remains divided on this issue


Although the Supreme Court has issued their decision to uphold the Presidential Proclamation, the nation still remains divided on this issue.  In his NBC News article,  Adam Edelman pointed out that many Democrats and civil rights groups are frustrated with the Court’s decision to uphold the travel ban.  A prime example,  Omar Jadwat, the director of the American Civil Liberties Union’s Immigrants’ Rights Project, calledthe national security justification “flimsy” and said thedecision would “go down in history as one of the Supreme Court’s great failures.” Jadwat and others also comparedthe Court’s decision to the “shameful” Korematsu decision, which upheld the Japanese Internment Camps during WWII. Though many Americans are angry at the Court’s decision, othershave pointed out that Congress must share in the blame.


Andrew Kent, a professor at Fordham University School of Law, asserted that it is up to Congress to do more to constrain the executive branch.  While legislative vetoes are unavailable, Kent argues that“Congress could and should consider ways to better cabin and channel delegated power,” specifically by using“requirements of more specific findings before delegated power can be exercised, sunset provisions to force reconsideration of delegations, [and] active oversight of how delegated authority is used.”  He further explains that Congress could restrain the President by“using the Senate’s appointments check to push for reasonable and competent nominees” and “withholding funding for problematic uses of delegated authority.”


The Lieutenant Governor of the state of Hawaii, Doug Chin, is another unsurprising critic of the travel ban. On NPR’s Morning Editionwith host Rachel Martin,  Chin discussed the travel ban and President Trump’s controversial statements surrounding it, pointing out that“there’s even things that President Trump had done even after the third travel ban came out, such as tweeting anti-Islamic videos that were false that really shocked the nation during that time.”  He also statedthat Hawaii’s claim has always acknowledged that the president should receive considerable deference in terms of national security; however, “deference must have its boundaries. And those boundaries are the U.S. Constitution as well as the laws that are passed by Congress when it comes to immigration.”  While Chin is just one of many who oppose the travel ban, his position as Lieutenant Governor of Hawaii places him in a unique position in this case.


Tremendous support towards the travel ban


President Trump has had two organizations show tremendous support towards the travel ban, writing amicus briefsin support of his case: The Center for Constitutional Jurisprudence (The Center) and the Great Lakes Justice Center (GLJC). In support of the travel ban, The Center arguesthat President Trump’s power to exclude who can and cannot enter the United States is an inherent presidential power, deserving great deference.  Because of this, the Presidential Proclamation creating the travel ban does not require Congress’s explicit approval, nor does it violate any clause of the Constitution. Another supporter of President Trump’s travel ban, the GLJC, arguesthat the travel ban does not violate the Establishment Clause, as it neither establishes nor mandates a state religion or state church.


Trump supporters John Yoo, a law professor at UC Berkeley School of Law, and Robert J. Delahunty, a  law professor at St. Thomas University, also expressed their approval of the holding in Trump v. Hawaiiin an opinion pieceon Fox News.  They statedthat the Court’s rejection of the Plaintiff’s argument concerning presidential authority under the INA “was almost a no-brainer.”  Yoo and Delahunty called out liberals with thesuggestion that they“usually applauded such broad transfers of congressional power to the administrative state when the subject is environmental protection or market regulation.”


On the constitutional issue addressed in the decision, Yoo and Delahunty celebratedthe majority decision for looking to the text of the Proclamation instead of the President’s statements.  In their view, to do so would have“paralyzed the Trump administration and future presidents by subjecting to challenge virtually any presidential decision, even if facially legal, based on their hidden state of mind.”


John Cornyn, a Republican Texas Senator told NBC newsthat this was no different from President Obama’s actions as president. Cornyn was not surprised by the holding, stating that“[t]his is not anything President Obama didn’t do when he was president. So, I’m not surprised the Supreme Court ruled the way they did.”


Trump has won the present case, [but] only time will tell what the future holds


As the numerous opinions in Trump v. Hawaiimake clear, this case turns on issues that are remarkably decisive and significant to the future of American society. The Court’s decision in this case is as polarized as the citizens of our nation on the issues surrounding the travel ban. While President Trump has won the present case, only time will tell what the future holds for foreign nationals seeking entry into the United States and the broad powers of the executive branch in foreign affairs and immigration.

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About Bryant Pernell (6 Articles)
Bryant Pernell is a third-year law student at Campbell Law School and currently serves as an Associate Editor for the Campbell Law Observer. Originally from Kenbridge, Virginia, Bryant attended the College of Charleston where he received his Bachelor’s degree in Political Science. Before law school, he worked as a real estate agent for Southern Virginia Realty, Inc., and interned at Harris, Mathews, & Crowder, P.C. While at Campbell Law, Bryant has served as Event Coordinator for Delta Theta Phi, a service-based fraternity, and is pursuing an LL.M in Legal Practice through Nottingham Trent University. He is interested in comparative legal studies, constitutional legal issues, and estate planning.
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