On June 26, 2018, the Supreme Court of the United States held, in Trump v. Hawaii, 585 U.S. ___ (2018), that President Trump’s September 2017 Proclamation announcing the travel ban[1] was a lawful exercise of his executive authority. The Proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” stated that its purpose is to improve vetting procedures for foreign nationals by improving the information-sharing between the U.S. and foreign countries. The Proclamation placed restrictions on entry to the U.S. by citizens of Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.

Case Overview

The case reversed the district court’s nationwide injunction preventing enforcement of the travel ban, which had been upheld by the 9th Circuit. At issue in the case was the scope of the President’s statutory authority under 8 USC §1182(f), which 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. The majority noted that the statute “exudes deference to the President in every clause,” [2] entrusting to him the decision whether and when to suspend entry; whose entry to suspend; for how long; and on what conditions. “The sole prerequisite,” the majority highlighted, is that the President find “that the entry of the covered aliens ‘would be detrimental to the interests of the United States.’”[3] 

The majority held that the President met that requirement, inasmuch as:  (1) he ordered cabinet officials and federal agencies to conduct a review of the adequacy of information provided by foreign governments about their nationals seeking entry to the U.S.; (2) the executive branch of the government had established a “baseline” for information required from foreign governments to confirm the identity of individuals seeking entry to the US in order to determine whether those individuals pose a security threat; and (3) the government thereafter identified a list of countries with deficient information-sharing practices which represented national security concerns. Moreover, the Proclamation was “neutral on its face” and addressed “a matter within the core of executive responsibility.”[4]

The plaintiffs in the case consisted of the state of Hawaii, the Muslim Association of Hawaii, and “three individuals with foreign relatives affected by the entry suspension.”[5]  The majority found that the plaintiffs had Article III standing to bring the suit, because, “A person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III injury in fact.”[6]  They raised both statutory and constitutional objections to the President’s Proclamation.

Statutory Argument

Plaintiffs’ statutory argument focused on both the plain language of 8 USC §1182, as well as the statutory prohibition in 8 USC §1152(a)(1)(A), against discrimination on the basis of nationality in the issuance of immigrant visas. Their argument was essentially that the Proclamation failed to provide a persuasive rationale for the use of nationality alone as a basis for excluding individuals subject to the travel ban; and that the President’s travel ban conflicted with the statutory prohibition on discrimination based on nationality. The Court found that the “searching inquiry” into the President’s justifications that the plaintiffs sought was inconsistent with both the broad authority granted to him by the statute as well as the “deference traditionally accorded the President in this sphere;”[7] and that exclusion of entire nationalities of individuals is permitted by §1182 because a nationality is a clearly identified “class of aliens.” The majority noted further that Congress granted the President not only authority to suspend “any class of aliens” but “all aliens.”[8]

Constitutional Argument

Plaintiffs further argued that President Trump’s Proclamation, and the prior iterations thereof in the form of executive orders[9] were unconstitutional, contrary to the Establishment Clause of the First Amendment, which states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

While the Establishment Clause expressly forbids only the passage of laws respecting an establishment of religion, it has also been broadly interpreted to forbid any government action respecting the establishment of religion or prohibiting the free exercise thereof.[10]  Thus the President’s Proclamation, while not enacted by Congress, is nevertheless a government action which could be found to contravene the First Amendment if, as plaintiffs claim, it was motivated by religious animus towards Muslims and operates as a “religious gerrymander,”[11]  both because the ban applied primarily to Muslim-majority nations and because the President’s own public statements in the months leading up to his election, as well as after the election, and on his webpage, indicated that he wanted to completely ban all Muslims from entering the U.S. Plaintiffs alleged that the President’s vetting protocols and national security concerns were mere pretexts for discriminating against Muslims.

In dismissing this line of reasoning, the majority opinion noted:

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing 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.[12]

This rationale formed the heart of the majority’s decision to reverse the 9th Circuit’s decision and remand the case for further proceedings, and indicated a concern on the part of a majority of the justices about applying a heightened standard of review to an Establishment Clause claim when it strikes at actions within the President’s power. Never before in the history of the United States has the Supreme Court been asked to review an action of the President himself that implicates the Establishment Clause of the First Amendment. In other words, this is the first time in U.S. history in which our President has acted in a manner that appears openly discriminatory towards an established religion. As such, it was a case of first impression, and required the High Court to determine how to enforce two provision of the Constitution that have never before been placed at odds with one another: the Establishment Clause and the scope of the executive authority.

The majority in this case consisted of Justices Roberts, Kennedy, Thomas, Alito, and Gorsuch. As the above-captioned paragraph indicated, the justices appeared to have reservations about their own decision to uphold the President’s Proclamation, but hold that they must do so in order to protect the institution of the Presidency. Justice Kennedy made his reservations even clearer in his concurring opinion, where he noted that there are numerous instances in which the actions and statements of government officials are not subject to judicial scrutiny, but emphasized the importance—precisely because they are free from judicial scrutiny—to adhere to the Constitution. His opinion reads as a letter of admonition to the President. Yet the majority’s prevailing concern appeared to be that if the judiciary were, in this case, to have declared the travel ban unconstitutional under the Establishment Clause, their basis for doing so would have  been, essentially, a judicial finding that the President was lying about his real reasons for issuing the Proclamation. It would permit the judiciary to look behind executive actions to probe the motivations from which they originate. Such a finding would upset the balance of powers between the three branches of government, with far-reaching and unpredictable consequences.

Practical Implications

As a result of the Court’s decision, the travel ban remains in effect. To summarize its provisions:

• Iranian nationals are prohibited from entering the U.S. except in F, M, or J status, though they are subject to enhanced screening
• Libyan nationals are prohibited from entering as immigrants and as temporary B-1/ B-2 visitors but may still enter in other nonimmigrant statuses.
• North Korean nationals are prohibited from entry as immigrants and nonimmigrants (total ban).
• Somalian nationals are prohibited from entry as immigrants and are subject to enhanced screening for all nonimmigrant entries.
• Syrian nationals are prohibited from entry as immigrants and nonimmigrants (total ban).
• Venezuelan nationals are prohibited from entry for certain government officials and family members and as tourists and business visitors but may enter in other nonimmigrant statuses or as immigrants.
• Yemeni nationals are prohibited from entering as immigrants and as temporary tourists and business visitors but may enter in other nonimmigrant statuses.
• Nationals of Chad have been removed from the travel ban list as of March 2018.

The ban applies to all of the aforementioned individuals unless they are eligible for a waiver or if they fall under one of the exemptions. Exemptions include: lawful permanent residents, foreign nationals admitted or paroled into the U.S. on or after the effective date, foreign nationals who have a valid document other than a visa, dual nationals of a designated country who also have a passport from a non-designated country which they are using for the purpose of entry; foreign nationals with diplomatic, NATO, C-2/ UN visas; or G-1, G-2, G-3 or G-4 visas; as well as refugees and asylees. Further, it does not apply to individuals granted withholding of removal, advance parole, or protection under the Convention Against Torture.

In addition it should also be noted that the travel ban applies only to foreign nationals from the above-noted countries who are outside the U.S. on the effective date, and who also lack a visa on the effective date.

The Proclamation also provides that waivers are available based on certain humanitarian and national interest grounds, particularly if the foreign national was previously admitted to the U.S. for a continuous long-term activity and seeks reentry after the effective date of the travel ban. Waivers are discretionary, and reportedly are not generally being issued.[13]  There is no formal procedure to apply for one.

[1] Proclamation No. 9645, 82 Fed. Reg. 45161 (09/29/2017).

[2]  Trump v. Hawaii, 85 U.S. ___,10 (2018).

[3] Id at 11.

[4] Id at 29.

[5] Id at 2.

[6] Id at 26.

[7] Id at 13.

[8] Id at 14.

[9] The first travel ban was issued initially as Executive Order 13769, at 82 Fed. Reg. 8977 (02/01/2017). The second version was published as Executive Order No. 13780, at 82 Fed. Reg. 13209 (03/09/2017).

[10] See, e.g., Salazar v. Buono, 559 U.S. 700 (2010), a case which considered the constitutionality of a large white Christian cross erected by members of the Veterans of Foreign Wars on federal land in the Mojave Desert.

[11] Trump v. Hawaii at 26.

[12] Id at 29.

[13] In Justice Breyer’s dissent, he notes that he would strike down the travel ban as unconstitutional because, while its plain language does not evince religious animus, its application does, because in practice, waivers of the travel ban are not being granted- thus denying visas to Muslims who meet the Proclamation’s own security terms. Specifically, he notes that in the first month of the travel ban’s implementation, 6,555 waiver applications were submitted but only 2 were granted. In addition, while the Proclamation does not apply to asylum seekers or refugees, there have been only 13 refugees admitted to the US since the travel ban took effect, as compared to the 15,000 who arrived in 2016.