“Travel Ban” Well-Within Trump’s Authority, Says Divided SCOTUS

Travel Ban

The US Supreme Court today issued its decision in Trump v. Hawaii, holding that the President’s “travel ban”, restricting the entry of foreign nationals from eight mostly-Muslim countries, was a lawful exercise of the President’s authority under the Immigration and Nationality Act (INA).  The executive order, referred to as “the Proclamation”, was challenged by the State of Hawaii, three individuals, and the Muslim Association of Hawaii. The District Court granted a nationwide injunction, and the Ninth Circuit granted a stay, but later ruled for the Plaintiffs in finding that the Proclamation “exceeded the President’s authority”. Today’s SCOTUS decision reverses the Ninth Circuit in a predictably split ruling, with Justices Ginsburg, Sotomayor, Kagan, and Breyer dissenting from the Roberts-written majority opinion.

The plaintiffs argued that the Proclamation violates INA because, for 6 of the 8 countries, the policy discriminated based on nationality, and the President did not sufficiently show that allowing these foreign nationals entry would be detrimental to national interest. The Ninth Circuit agreed, and the Trump administration appealed to the Supreme Court.

The Court noted that the plain language of INA “grants the President broad discretion to suspend the entry of aliens into the United States”, and found that the plaintiffs did not present sufficient grounds to “overcome the clear statutory language”:

The text of §1182(f) 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 nonim-
migrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

The Court further found that the President based the proclamation on the results of “a comprehensive evaluation” by the Department of Homeland Security and other agencies and set forth the basis on which the targeted countries were found deficient, thus satisfying the requirement of INA that the restriction be based on a finding of potential detriment to the United States. The plaintiffs argue that the President’s rationale is not persuasive; the Court questions whether he is required to, but finds that, even if he were, he has done so. (The majority opinion compares Trump’s 12-page proclamation with President Clinton’s 1996 Proclamation No. 6958, a one sentence explanation for the suspension of entry for members of the Sudanese government and armed forces.)

The Court goes on to consider and reject additional arguments regarding legislative intent and structure, before discussing whether the Proclamation violates the INA by discriminating based on nationality. In support for their argument, the plaintiffs point to Section 1152(a)(1)(A) of the INA, which reads as follows:

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

The Court rejects the argument, noting a distinction between 1182(f) and 1152(a)(1)(A):

The distinction between admissibility—to which §1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end.

As Roberts points out, using 1182(f) to prohibit based on nationality is not new: Reagan used it against Cubans, Carter against Iranians. Also of note to the majority is that the Proclamation applies to North Koreans, a provision that the Hawaii plaintiffs do not challenge, but which would also be illegal under the plaintiffs’ interpretation.

Concluding, the Court discusses what many see as the crux of the issue: whether President Trump’s Proclamation is illegally discriminatory against Muslims, based on the Establishment Clause of the First Amendment, by “singling out Muslims” for unfavorable treatment. Their argument is based on the fact that most of the affected countries have majority Muslim populations- and on the President’s own words. The Court tacitly seems to concede that Trump’s words are not in the spirit of religious liberty for all:

Our Presidents have frequently used that power to espouse the principles of religious freedom and
tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.”…

President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.”

Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days— performed unevenly in living up to those inspiring words.

However, the Court opines that its job is not to decide “whether to denounce [Trump’s] statements”, but instead  whether those statements are significant in interpreting “a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” In other words, yes, he said those things, but does the order reflect an otherwise legitimate exercise of authority? The Court thus agreed to consider the statements, but “will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds” (the “rational basis” test.) Of the Proclamation, the Court says

It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus… because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.

Among other things, the Court noted that the Proclamation applied to only 8% of the world’s Muslim population, and applied to two non-Muslim majority countries (North Korea and Venezuela). Justice Thomas writes separately, emphasizing his opinion that the President’s “inherent authority to exclude aliens from the country” is not subject to any “judicially enforceable limits” under INA. He also addresses the authority of a District Court to issue nationwide injunctions, such as those under review, expressing skepticism at their propriety.

The dissent of Justice Breyer, joined by Justice Kagan expresses disagreement with the majority’s view of how significant “religious animus” was to the Proclamation. In doing so, Breyer notes his belief that the Government is not applying the Proclamation as written. He acknowledges the availability of waivers to the suspension, but notes that the number of waivers granted is minuscule compared to the number of visitors prior to the issuance of the EOs. Because of his questions regarding the sincerity of the waiver process, which he finds important to the analysis, he would have left the injunctions in place and remand for further development of those facts.

Finally, Justice Sotomayor, joined by Justice Ginsburg, delivers the meatiest dissent. At its outset, the dissent accuses the majority of failing to safeguard the principles of religious neutrality in the First Amendment, calling the national security concerns “a facade”:

Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Estab­lishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla­mation inflicts upon countless families and individuals,many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.

Sotomayor recounts then-candidate Trump’s call for a total ban on Muslims entering the United States, citing a television interview in which he defended his views by invoking Franklin Roosevelt’s internment of US citizens of Japanese descent during WWII. Sotomayor goes on to use Trump’s words, citing interviews, speeches, and of course, Tweets, to set forth a several-pages-long, compelling case proving his anti-Muslim intentions.

In rejecting the majority’s disregard for the significance of Trump’s hostility to Islam, Sotomayor reminds us that the Court “recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant.” She was speaking, of course, of the Masterpiece Cakeshop decision.

Finally, Sotomayor invokes Korematsu v. United States, which challenged the Japanese internment camps Trump referenced. The 1944 Supreme Court gave its blessing to the racially motivated actions of Roosevelt’s executive order- a decision that the majority here denounces as “gravely wrong”, but not analogous to the issue at hand.

The predictable split of the Court on this matter portends the inevitable split between the left and right leaning citizenry, as many decisions this term have done. With the strong, provocative rhetoric from our President which underlies the whole thing, it is hard to reconcile the two sides.

It may be fitting to end with the words of Justice Kennedy, who wrote separately from the majority, though he joins in full. His short concurrence seems to be but a reminder that, even for those actions not subject to judicial scrutiny, all public officials take an oath to uphold the Constitution. Writes Kennedy, “[A]n anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

Senior Editor

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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12 thoughts on ““Travel Ban” Well-Within Trump’s Authority, Says Divided SCOTUS

  1. The predictable split of the Court on this matter portends the inevitable split between the left and right leaning citizenry, as many decisions this term have done. With the strong, provocative rhetoric from our President which underlies the whole thing, it is hard to reconcile the two sides.

    I’m torn on this one as I believe that the dissenters are correct on the principle, but the majority may be right on the law. So, I agree that these things can be hard to reconcile, but I don’t see that there is really any other option. You need a consensus to effectively govern a democracy. A lot of political partisans display a mentality of Beat the enemy! Give no quarter! It’s a nice enough fantasy, I guess, but completely untenable. One half of the electorate is never going to decisively beat the other half. That didn’t even happen after the Civil War.

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    • Per my comment on the other thread, the “other half” grows and shrinks with time.

      The split we see now isn’t immutable and eternal.

      Just as happened with interracial marriage, school integration and a host of other issues, opinions change and that “half” reduces to an impotent minority.

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    • This isn’t the first time that two parts of the Constitution were in conflict. I’m willing to concede that that the Constitution gives Congress plenary power over immigration through its power to create a uniform rule of naturalization. I’m also going to concede that Congress has power to delegate this responsibility to the President. However, a fundamental liberty, freedom of religion, is at stake explicitly, and race is at issue implicitly since no majority white country is effected by the travel ban. I think even considering Congress’ plenary power over immigration, any restriction based on religion or race needs to survive strict scrutiny. It must be narrowly tailored to meet a compelling government interest. The travel band is not because it effects people who are not in in danger of being terrorists and is not the least restrictive means possible to protect America from terrorism.

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    • the dissenters are correct on the principle, but the majority may be right on the law.


      And it’s very dangerous that we’ve got Judges, even 4 Supremes, who apparently feel free to ignore the law when they don’t like the outcome.

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      • Eh, I’m not buying. The United States has a long history of officials, elected and not-elected, ignoring the law. This dissent doesn’t even rank a comment among the worst.

        It’s far more dangerous that there is an idiot in the White House and a sizable enough portion of the electorate to enable that idiot.

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  2. I agree with the decision. As Scalia said, “stupid but Constitutional” The law clearly gives the President this kind of authority. I understand the dissenter’s point, though: that you shouldn’t separate out the clear intent of the law. Just disagree with it.

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    • Concur. It’s bad policy but I see this as basically an issue of statutory construction. There’s a strong argument to be made that we’ve invested way too much power in the executive but these are political decisions and the constitutional jurisprudence about delegation of power isn’t changing any time soon. The solution is to vote out Trump.

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  3. As I wrote on the Twitters yesterday, I think Sotomayor’s point in dissent is trenchant: sometimes, under a rational basis review, we seem to demand perfection, or close to it, in the way a public official addresses an issue.

    Masterpiece Cakeshop reversed an otherwise-apparently-righteous finding of violation of a public accommodations law based largely upon the stray remarks of one regulator at a level of intermediate review. I say “otherwise-apparently-righteous” because the Masterpiece Cakeshop court never got to the point of balancing of speech or free exercise rights; the stray remarks that Christianity had been invoked in the past to justify horrible things were evidence of such great bias and animus that the Court reversed on them alone. I also say that because very quietly, the Court declined another case very similar to Masterpiece Cakeshop that was apparently free of this procedural taint, letting the state finding of a violation of antidiscrimination law stand.

    in Trump v. Hawaii, however, we have not just stray remarks but overt, forceful, and repeated expressions of political will which are, if not pointedly disregarded, pointedly dismissed as not sufficiently probative to carry the day. The phrase “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. Until we figure out what the hell is going on.” cannot possibly be interpreted as other than a religious-based test for entry into the United States which is contrary to explicit Congressional law and the Constitution. The dissents focus on them and they were a major point of the advocacy in this matter. But the opinion gives them short shrift, pointing out that a different President not suffering from religious animus could conceivably have enacted this Order.

    Some rational basis reviews are more searching of evidence of public official bias than others, apparently. It’s an odd coincidence indeed that the fulcrum upon which the “very searching” and “very deferential” standards of what otherwise would be two structurally similar rational basis analyses appears to rest upon the alignment of the prevailing cultural majority.

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    • This seems like its looking really hard to find something I’m not sure as there. Both of these decisions are consistent with the Roberts court’s dedication to avoiding constitutional decisions which given the gravity is no bad thing. We saw the same thing in National Federation of Independent Business with the ACA mandate decision.

      Even after Master Cakeshop there’s no evidence that duly enacted prohibitions on same-sex discrimination in public accommodations will be held unconstitutional for 1st Amendment reasons. Here the court declined to find something in a facially neutral order clearly permitted by the statutory framework. There are times I agree that the court isn’t as willing as it should be to reverse public policy decisions. But we also have to recognize that every time it does that it puts its own legitimacy on the line. To me this one isn’t even close, when the obvious answer for fixing it is voting out the incumbent when we get the opportunity.

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    • “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. Until we figure out what the hell is going on.” cannot possibly be interpreted as other than a religious-based test for entry into the United States which is contrary to explicit Congressional law and the Constitution.

      There is a large disconnect between what he said there, i.e. “No Muslims”, and what his order says, which is effectively “People with governments which can/will not control terror movements”. One can reasonably question whether failed states have the ability to properly vet people, or whether Iran would.

      For all the talk of Muslim majority countries, this order effects 7% of Muslims, and it’s effectively Iran plus failed states and/or territories at war with us. A normal President could do this, if memory serves Carter did do this.

      If a normal President could do this without it being viewed as racist, then this action isn’t clearly racist by itself… which means the lawsuit is mostly about punishing Trump for being a racist and/or part of a political tussle. Trump as a racist shouldn’t be setting immigration policy, but the courts will get dirty if they step into a political/cultural shit throwing match.

      What is the alternative to having Trump carry out his duties here? Have the Courts set immigration policy? Send the order back to Trump so he can sanitize it to the point where a normal President could reasonably have issued this order? Have the courts say this President isn’t allowed to defend the country from Terrorism? Insist that the President resign because as a racist he can’t carry out his duties? Have him say he’s not a racist (again) and then have him reissue the same order?

      The problem isn’t the order, the problem is Trump, and fixing Trump is beyond The Court’s mandate.

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