Yesterday, the Supreme Court issued its highly anticipated decision in Trump v. Hawaii, 585 U.S. ___ (2018) regarding Presidential Proclamation No. 9645, otherwise known as the “Travel Ban.” To the dismay of many, the Supreme Court upheld the Travel Ban in spite of challenges that the President (a) did not have authority to issue the ban under the Immigration and Nationality Act (INA), and (b) violated the First Amendment’s Establishment Clause by targeting and discriminating against Muslims. One of the major takeaways from the majority’s opinion is the extreme deference to be afforded the President when it comes to national security matters. In many other situations, extrinsic evidence regarding religious animus (in the form of statements by government officials) may be given substantial weight when considering an Establishment Clause challenge. But here, such statements by the President were largely trumped by national security concerns.
President Trump stated that the Travel Ban was necessary to impose entry restrictions on nationals from certain countries that do not share enough information for the United States to make an informed entry determination, or that present national security risks. It followed a “worldwide review” in which federal agencies worked to identify countries with deficient information-sharing practices that presented national security concerns. After collecting and evaluating all of the information, the Department of Homeland Security (DHS) determined that 16 countries had deficient practices, and another 31 countries posed security threats for failing to meet other baseline requirements. Several of these 47 countries responded by improving their information-sharing techniques, including sharing information on known or suspected terrorists, to avoid being included on the Travel Ban list. In the end, the Travel Ban applied to 8 countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.
The plaintiffs in the case are the State of Hawaii, three individuals, and the Muslim Association of Hawaii. They sued to challenge the Travel Ban (except as applied to North Korea and Venezuela) as not being authorized by the INA and violating the Establishment Clause. The District Court concluded that the Travel Ban likely violated the INA and issued a nationwide injunction preventing the ban. The Ninth Circuit affirmed, but granted a partial stay, permitting enforcement of the Travel Ban with respect to foreign nationals lacking a bona fide relationship with the United States. The Ninth Circuit did not reach the Establishment Clause claim. The Supreme Court agreed to review the case and then stayed the injunction in full pending a final decision.
In a decision authored by Chief Justice Roberts (joined by Justices Kennedy, Thomas, Alito, and Gorsuch), a majority of the Supreme Court reversed the Ninth Circuit ruling. The majority found that the INA authorized the President to issue the Travel Ban, as it “grants the President broad discretion to suspend the entry of aliens into the United States.” The majority added that “The President 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.” And the 12-page proclamation “which thoroughly describes the process, agency evaluation, and recommendation underlying the President’s chosen restrictions – is more detailed than any prior order a President has issued under [the INA].” Finally, the majority noted “the deference traditionally accorded the President in this sphere,” and that “Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality.”
Next, the majority rejected the plaintiffs’ contention that the Travel Ban violates the First Amendment because it is a pretext for discriminating against Muslims. The plaintiffs pointed to a series of statements made by the President and his advisers casting doubt as to intent of the Travel Ban, including: (a) then-candidate Trump’s “Statement on Preventing Muslim Immigration” calling for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on;” (b) then-candidate Trump’s statement that “Islam hates us” and the country was “having problems with Muslims coming into the country;” (c) one of Trump’s campaign advisers saying that the President asked him to put a commission together to figure out how to ban Muslims legally; and (d) more recently, three anti-Muslim propaganda videos tweeted by the President.
The majority noted the uniqueness of the case before it, its limited role in second-guessing the President’s national security policy, and framed the issue as follows:
But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself….
The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements – many of which were made before the President took the oath of office….
Under this limited (rational basis) standard of review, the Travel Ban passed constitutional muster, since it was facially legitimate and was meant to advance bona fide national security interests. At the government’s insistence, the majority considered some extrinsic factors to assess whether the ban was rationally related to its stated objective. In doing so, the majority stated that it would consider the extrinsic evidence relied on by the plaintiffs, but explained several factors suggesting that the Travel Ban was not intended to discriminate against Muslims – the ban says nothing about religion; it is the product of a worldwide review process; the countries included in the Travel Ban account for only 8% of the world’s Muslim population and were previously designated by Congress or prior administrations as posing national security risks; and since the Travel Ban was introduced, Iraq, Sudan and Chad were removed from the list. It remains to be seen what effect this decision will have on future Establishment Clause challenges. Given the unique nature of the cause, it may have no effect at all.
Justices Kennedy and Thomas file separate concurring opinions. Justice Breyer filed a dissenting opinion joined by Justice Kagan, and Justice Sotomayor filed a dissenting opinion joined by Justice Ginsburg.
The majority, concurring, and dissenting opinions are available here.
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