Can the president lawfully prevent foreign nationals from certain Muslim-majority countries from entering the United States?
On January 27, 2017, President Donald Trump signed Executive Order 13769, which temporarily banned citizens of seven Muslim-majority nations from immigrating to the United States. Various states challenged the executive order on grounds of religious discrimination. In March of 2017, the president signed Executive Order 13780, and in September 2017 he issued a third iteration of the order via presidential proclamation. The proclamation affects the immigration and visa rights of nationals of eight different Muslim-majority countries. President Trump argues that the proclamation is a proper application of his executive authority, and that it accords with the Establishment Clause of the Constitution. Hawaii contends that the proclamation is motivated in part by religious discrimination and is therefore unconstitutional. The outcome of the case could significantly impact existing immigration policy, as well as determine the scope of the Executive’s power to implement and enforce such policy.
Questions as Framed for the Court by the Parties
(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.
On January 27, 2017, President Donald Trump issued Executive Order 13769 (“EO-1”), which placed significant immigration restrictions on foreign nationals from seven Muslim-majority countries. , EO-1, whose stated purpose was to prevent terrorist attacks on American soil, was immediately met with legal challenges by various individuals and state governments. The State of Washington sued, and a district court enjoined the federal government from enforcing the order. Although the government appealed and moved for a stay of the injunction, the Ninth Circuit denied the motion, and the government eventually withdrew its appeal.
On March 6, 2017, President Trump signed Executive Order 13780 (“EO-2”), a revised directive that required Department of Homeland Security officials to inquire whether certain foreign governments were providing the United States with adequate intelligence regarding their citizens who were attempting to immigrate to the United States. While the Secretary of Homeland Security conducted this investigation, EO-2 enacted a 90-day travel ban on the immigration of foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, all Muslim-majority countries. The district court in Hawaii enjoined EO-2, and both the Ninth Circuit and the Supreme Court upheld the injunction against the order, with a few minor exceptions.
In September 2017, via a presidential proclamation (“the Proclamation”), President Trump again suspended immigration to the United States by nationals of certain Muslim-majority countries, as well North Korea and Venezuela. Unlike EO-2’s 90-day ban on entry to the United States, the Proclamation’s immigration suspension was indefinite; it applied to foreign nationals who fell under the reach of EO-2 and lacked a bona fide relationship to a person or entity in the United States. In addition, the proclamation placed significant restrictions on certain foreign nationals’ ability to obtain nonimmigrant visas. In October 2017, the Supreme Court vacated the Ninth Circuit’s decision regarding EO-2, finding it moot in light of the proclamation. In doing so, the Supreme Court noted it expressed no view as to the merits of the case.
The plaintiffs in the challenge to EO-2 amended their initial complaint to encompass statutory and constitutional claims against the Proclamation, moving for a temporary restraining order against the Proclamation that the district court granted in October 2017. The government appealed, and while the appeal was pending, the Ninth Circuit partially stayed the preliminary injunction. The government then moved for a complete stay pending appellate review of the preliminary injunction, which the Supreme Court granted in December 2017. On December 22, 2017, the United States Court of Appeals for the Ninth Circuit upheld the district court’s injunction, holding that the proclamation exceeded the scope of the President’s authority and probably violated the Immigration and Nationality Act (“INA”). In January 2018, the Trump administration petitioned the United States Supreme Court for a writ of certiorari, arguing that the injunction was overly broad and that it prevented the President from implementing important national security measures.
ARE HAWAII’S CLAIMS JUSTICIABLE?
President Trump argues that the Supreme Court cannot hear claims brought by aliens who are outside of the United States. President Trump maintains that neither the INA nor the Administrative Procedure Act (“APA”) allows for such judicial review. President Trump asserts that the INA affirmatively precludes judicial review of visa decisions made by consular officials, and, by extension, bars courts from examining presidential exclusion orders. Further, President Trump alleges that the relatives of non-admitted aliens do not belong to the class of persons for whom the APA creates a private right of action.
With respect to Hawaii’s constitutional claims, President Trump points out that only non-admitted aliens are subject to EO-3. Because the Establishment Clause has no effect outside the borders of the United States, President Trump notes that these aliens do not have constitutional rights on which they can base a reviewable claim. Moreover, President Trump observes that Hawaii cannot bring a derivative Establishment Clause claim because EO-3 does not apply directly to them.
Hawaii responds that both its statutory and constitutional claims are justiciable. Hawaii also argues that they are within the group of persons who may sue under the INA because EO-3 prevents relatives and students who would otherwise be eligible for statutory visas from entering the state.
In terms of the Establishment Clause, Hawaii refutes President Trump’s assertion that they cannot show an infringement of their own constitutional rights. Hawaii maintains it is irrelevant that EO-3 applies only to aliens abroad because the relevant injuries here are still “fairly traceable” to EO-3. Finally, Hawaii rejects President Trump’s argument that its injuries are indirect and therefore inadequate to sustain a review constitutional claim. According to Hawaii, EO-3 inflicts direct harm by openly discriminating against the Muslim faith.
DOES EO-3 VIOLATE THE IMMIGRATION AND NATIONALITY ACT?
President Trump claims that EO-3 was a lawful exercise of the executive’s broad power to “suspend or restrict entry of aliens abroad” as conferred by the INA. President Trump asserts that 8 U.S.C. § 1182(f) codifies this power. President Trump also points out that many of his predecessors issued similar exclusion orders in the past, even when there were no exigent circumstances. Thus, President Trump contends that § 1182(f) allows the executive to suspend entry by aliens abroad when it decides that such measures are necessary, and that the INA does not place any durational limits on these decisions. President Trump observes that this reading of the INA is consistent with the Court’s recognition in previous cases of the executive’s inherent power over foreign affairs.
President Trump further argues that EO-3 does not run afoul of 8 U.S.C. § 1152(a)(1)(A), which forbids discrimination on the basis of race or nationality. According to President Trump, this provision does not apply to aliens who are ineligible to receive visas because they have been banned from entering the United States on other grounds. President Trump therefore contends that § 1152(a)(1)(A) does not curtail the executive’s suspension power. Even if § 1152(a)(1)(A) did conflict with § 1182(f), President Trump suggests that § 1182(f) should supersede because it bestows a more specific power on the executive.
Hawaii responds that EO-3 exceeds the authority that Congress delegated to the executive through the INA. Hawaii asserts that § 1182(f) gives the President a narrow power to exclude aliens who share a characteristic that threatens the United States’ interests. Hawaii also notes that § 1182(a) places an additional “reasonableness” requirement on the President’s suspension decisions. Hawaii contends that EO-3 impermissibly surpasses these limits on the suspension power by barring a large group of aliens based on their nationality for an indefinite period of time, without any evidence that their entry would be detrimental to the United States’ interests. Hawaii asserts that this expansive action runs counter to the Court’s prior cases acknowledging that the Constitution places absolute power over immigration firmly in the hands of Congress rather than the executive.
Hawaii maintains that EO-3 contravenes § 1152(a)(1)(A) by denying visas to aliens seeking entry to the United States solely on the basis of their nationality. Hawaii argues that it does not matter whether these visas are withheld on a case-by-case basis or through a blanket determination of ineligibility; the end result is the same either way. Hawaii also rejects President Trump’s proposition that § 1182(f) should supersede § 1152(a)(1)(A) because the latter was enacted ten years after the former and more specifically prohibits discrimination.
DOES EO-3 VIOLATE THE ESTABLISHMENT CLAUSE?
President Trump argues that EO-3 does not violate the Establishment Clause because it was based on “facially legitimate” and “bona fide” foreign affairs determinations. President Trump points to the Supreme Court’s decision in Kleindeinst v. Mandel, which provides for minimal scrutiny review in the Establishment Clause context as long as the executive can give a facially legitimate and bona fide reason for its actions. . Moreover, President Trump notes that Mandel does not allow the Court to “look behind” the executive’s stated reasons for excluding aliens. President Trump rejects the notion that the Court’s subsequent decision Kerry v. Din established an exception to this prohibition on “looking behind” in disputes where there is evidence of bad faith, alleging instead that this case applies only to the rare circumstances where the executive cannot furnish any factual basis at all for its actions.
Even if the Court does look behind, President Trump contends that a reasonable person examining the text and history of EO-3 would not view it as disfavoring a particular faith because it does not mention religion, it was the product of inter-agency review, and it applies to several non-Muslim majority countries. According to President Trump, these factors confirm that EO-3’s purpose is to enhance national security, not to discriminate against Muslims. Finally, President Trump denies that any comments he or members of his staff made in the lead-up to EO-3’s signing displayed anti-Muslim bias.
Hawaii denies that Mandel and Din should govern the Court’s analysis when faced with a clear Establishment Clause transgression, especially when the executive exercises its suspension power so broadly. Instead, Hawaii asserts that the appropriate inquiry is “whether a reasonable observer would view the Executive as acting with the primary purpose to exclude members of a particular faith.” Hawaii argues that public statements from the President and members of his administration are sufficient to convince the reasonable observer that EO-3 was designed to bar Muslims from the United States. . Hawaii specifically points to President Trump’s statements on the campaign trail about enacting a “Muslim Ban,” and his dissemination of anti-Muslim videos via his Twitter account.
Hawaii also observes that EO-3 mostly affects aliens from majority-Muslim countries, given that Venezuelan and North Korean citizens are already barred from entering the United States under separate sanctions. Hawaii further refutes President Trump’s assertion that EO-3 must be constitutional because it does not reference religion, noting that the reasonable observer cannot be misled by mere facial neutrality. Hawaii contends that national security may not justify an executive order that discriminates against an entire faith in violation of the Establishment Clause.
IS THE INJUNCTION OVERBROAD?
President Trump contends that the preliminary injunction blocking EO-3 is broader than is necessary to remedy Hawaii’s injuries. President Trump points out that an injunction limited to particular aliens would be enough to prevent the potential harm to the families and universities in this case. President Trump observes that the overriding interests in the uniform enforcement of executive policy and in encouraging class action suits counsel against upholding such a wide-reaching injunction.
Hawaii denies that the preliminary injunction is overbroad, arguing that the appropriate response to an unconstitutional policy is to fully enjoin its enforcement. Hawaii also notes that the interest in “uniformity” cuts against piecemeal measures enforcement and in favor of a nationwide injunction. Hawaii refutes that the injunction prevents groups of plaintiffs from suing elsewhere, observing that both the Ninth and Fourth Circuits already reviewed EO-3.
THE SCOPE OF EXECUTIVE AUTHORITY
In support of President Trump, the Center for Constitutional Jurisprudence (“the Center”) draws on James Madison’s writings in The Federalist to argue that the President retains inherent authority to oversee national security measures and foreign affairs. The Center contends that an important distinction exists between managing domestic issues, and foreign affairs, for which the President can draw on his or her inherent authority. Excluding foreign nationals from entering the country, according to the Center, falls under the umbrella of foreign affairs powers, so President Trump’s authority to exclude citizens of certain countries is not proscribed by the Constitution. The Center argues that because the president has the authority to regulate foreign affairs, President Trump’s proclamation would be lawful even without Congress’s explicit approval. Multiple state governments (“the States”) add that the Proclamation is a proper exercise of the authority which Congress granted to the President under 8 U.S.C. § 1182(f).
Writing in support of Hawaii, Khzir Khan counters that the Proclamation improperly undermines the separation of legislative and executive powers. Khan argues that the Proclamation amounts to an unlawful delegation of legislative powers to the president. In contrast to the Center’s description of the executive’s inherent authority to regulate immigration, Khan points to the Court’s decision in Mandel, which distinguished between Congress’s authority to delineate immigration policy, and the president’s duty to enforce those policies. The Proclamation, Khan argues, “‘directs that a presidential policy be executed in a manner prescribed by the President,’” an arrangement proscribed by the Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer. A group of appellate attorneys writing in support of Hawaii also point to the Youngstown decision as the foundation for their claim that constitutional limitations on federal power, such as the Free Exercise Clause or the Establishment Clause, apply to executive actions like the Proclamation.
EFFECT ON MINORITIES AND U.S. IMMIGRATION POLICY
Writing in support of President Trump, the Great Lakes Justice Center (“GLJC”) urges the Court to take an originalist approach in interpreting the Establishment Clause. According to GLJC, the Clause merely prevents the federal government from imposing a state religion. In turn, GLJC argues, the Proclamation comports with the Establishment Clause, since it does not mandate a state religion or a state church. The States add that foreign nationals seeking entry into the United States do not have Constitutional rights of the kind protected by the Establishment Clause, and that while the Court has previously extended such rights to foreign citizens who are already in the United States, it has refused to recognize the rights in aliens outside the United States. The Immigration Reform Law Institute, meanwhile, suggests that if the Court were to accept respondents’ argument that President Trump’s public comments about Muslims void the Proclamation under the Establishment Clause, it would be a slippery slope to the Court enjoining America’s war on ISIS, a religious group which the President has also publicly denigrated, and which counts American citizens among its members.
Writing in support of Hawaii, the Roderick & Solange Macarthur Justice Center (“MJC”) highlight President Trump’s public comments about limiting Muslim immigration to the United States as evidence of the Proclamation’s improper religious motivation. Drawing on Justice Souter’s opinion in Hamdi v. Rumsfeld, MJC contends that the Court must recognize this unconstitutional basis for the Proclamation, and distinguish it from the national security goals which the President argues justify the Proclamation. To allow the Proclamation to stand, MJC suggests, would be to abdicate the judiciary’s responsibility to prevent the executive from acting unconstitutionally, much as the Court did in its notorious Korematsu v. United States decision, which resulted in Japanese-American internment. The American Council on Education adds that the Proclamation would have a disastrous effect on American universities’ ability to attract strong international students and faculty from around the world. Khzir Khan argues that the Proclamation’s policies would affect Muslims more broadly, by positioning them as outsiders regardless of their devotion to America and preventing them from fully participating in an American political community.
- John Bowden, 16 States and DC Back Hawaii’s Case Against Trump Travel Ban, The Hill (Mar. 30, 2018).
- Erwin Chemerinsky, The Travel Ban and the Supreme Court, ABA Journal (Apr. 2, 2018).
- Allison Frankel, Snubbing Trump DOJ, Big Law Firms Back Hawaii Amici in SCOTUS Travel Ban Case, Reuters (Apr. 2, 2018).