Entry restrictions to the United States against nationals of eight predominantly Muslim countries: The President is within his authority to act based on national security concerns.
On June 26, 2018, the Supreme Court of the United States issued a decision in Trump v. Hawaii. The Court reversed the decision of the United States Court of Appeals for the Ninth Circuit in Hawaii v. Trump, which had enjoined the entry restrictions against nationals of eight countries in President Trump’s Proclamation 9645 of September 24, 2017, commonly referred to as the “travel ban”. By a 5-4 majority, the Court’s conservatives concluded that the President had acted within his statutory authority under section 1182(f) of the Immigration and nationality Act (INA) in issuing the suspension of entry provisions in the Proclamation. The Court also held that these entry restrictions did not violate the Establishment Clause of the First Amendment to the United Constitution, which prohibits favoring one religion over another. The majority relied heavily on the national security justifications for the ruling.
Presidential Proclamation 9645 – Travel ban – Suspension of entry – Predominantly Muslim countries – Section 1182(f) of the Immigration and Nationality Act – Establishment Clause.
Since 2017, President Trump has issued three executive orders intended to place entry restrictions on nationals of a number of overwhelmingly Muslim countries. The order under scrutiny at the court was the latest of the three. It was issued in the form of a Presidential Proclamation on September 24, 2017.
Shortly after taking office, President Trump signed, on January 27, 2017, Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. The order imposed a 90-day ban on the entry into the United States of citizens from seven predominantly Muslim countries—Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen. The order also put a 120-day hold on the admission of refugees, while carving out an exception for religious minorities. The enforcement of this executive order was however blocked by lower federal courts.
In light of these legal setbacks, the President decided to supersede the first executive order with Executive Order 13780 issued on March 6, 2017, which was, in many respects, similar although identical, to the first order. Invoking investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, the second order also imposed a temporary (90 days) ban on the entry of citizens from six of the seven countries (with the exception of Iraq) included in the first order, pending completion of a worldwide review. It is worth noting that, unlike the first executive order, the second suspended the entry of refugees without any exceptions. The order explained that the concerned countries had been selected because each “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” The second order was immediately challenged in court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension. Those injunctions would be upheld by the United States Courts of Appeals for the Fourth Circuit in IRAP v. Trump, and by the Ninth Circuit in Hawaii v. Trump.
On June 26, 2017, the Supreme Court of the United States granted the Government’s petition for certiorari in its appeal of the Fourth and Ninth Circuit decisions upholding injunctions against the temporary travel restrictions. In so doing, the Court also significantly narrowed the scope of the injunctions, allowing the entry restrictions to go into effect with respect to foreign nationals who lacked a “credible claim of a bona fide relationship” with a person or entity in the United States. The temporary entry restrictions in the second executive order expired before the Supreme Court took any action. Consequently, the Court vacated as moot the lower court decisions in Trump v. IRAP, and Trump v. Hawaii.
On September 24, 2017, after completion of the worldwide review as directed in the second executive order, President Trump issued Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. The Proclamation is often referred to as the third executive order. As its title indicates, the stated purpose of the Proclamation was to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether national of particular countries present “public safety threats.” Based on the national security assessment and recommendations from the worldwide review, President Trump placed entry restrictions on certain specified nationals of eight countries whose systems for managing and sharing information about their nationals the President deemed inadequate: Chad (which would later be removed from the list), Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.
Soon thereafter, the State of Hawaii, three individual plaintiffs, and the Muslim Association of Hawaii challenged the Proclamation—expect as applied to North Korea and Venezuela — in the United States Court District of Hawaii, which had previously enjoined the restrictions in the second executive order. The plaintiffs’ challenge focused on two important grounds. First, they argued that the Proclamation contravened provisions of the Immigration and Nationality Act (INA). More specifically, they claimed that President Trump had not provided sufficient justification that the entry of the affected individuals would be detrimental to the national interest under section 1182(f) of the INA. The plaintiffs further asserted that the Proclamation improperly discriminated against the affected individuals on the basis of nationality, which was prohibited by the INA. Second, the plaintiffs contended the entry restrictions against the six predominantly Muslim countries violated the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam.
The District Court sided with the plaintiffs and granted a nationwide preliminary injunction barring enforcement of the entry restrictions. The Court of Appeals affirmed the District Court decision, agreeing with its conclusions about section 1182(f) and section 1152 (1) (A) in Hawaii v. Trump. Specifically, the Ninth Circuit reasoned that the Proclamation “conflicts with the INA’s finely reticulated regulatory scheme” by addressing “matters of immigration already passed upon by Congress.” The Ninth Circuit also determined that the entry restrictions contravened the prohibition on nationality-based discrimination in the issuance of immigrant visas. It is worth noting that the court did not reach the plaintiffs’ Establishment Clause Claim. The Government appealed the Ninth Circuit’s decision to the Supreme Court of the United States. On January 22, 2018, Court granted certiorari, agreeing to hear the case.
Writing for the majority, Chief Justice Roberts delivered the opinion of the Court, which substantively rejected the plaintiffs’ three main contentions.
First, Chief Justice Roberts rejected the plaintiffs’ argument that the September 2017 Presidential Proclamation exceeded the President’s authority under federal immigration laws. Contrary to the plaintiffs’ interpretation, he noted that section 1182(f) of the INA “exudes deference to the President in every clause”, giving him “broad discretion to suspend” the entry of noncitizens into the United States. Under this provision, the Chief Justice reasoned, the President is fully within his authority to block noncitizens from coming to the United States if he determines that such an entry “would be detrimental to the interests of the United States.” Looking at the facts of the case, he noted that the President had done just that because the Proclamation was the outcome of a “worldwide, multi-agency review” that concluded the entry restrictions were necessary to prevent foreign nationals from coming to the United States from countries that did not share enough information about their citizens so as to allow U.S. immigration officials to conduct a proper vetting. For Chief Justice Roberts, “the language of section 1182 is clear, and the Proclamation does not exceed any textual limit on the President’s authority.”
Second, the majority rejected the plaintiffs’ claim under section 1152(a) (1) (A) of the INA, which provides, “no person shall...be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place birth, or place of residence.” The plaintiffs’ argument was based on the assertion that section 1152 (a) (1) (A) applies to the initial question of whether a visa applicant is eligible for admission and then to the question of whether the applicant, having obtained a visa, may enter the country. The majority rejected the plaintiffs’ argument wholesale, finding that “it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.” Analyzing sections 1182 (f) and 1152 (a) (1) (A), the majority concluded that the plaintiffs’ reading of these provisions was erroneous because the two sections “operate in different spheres…” Section 1182(f) of the INA “defines the universe of aliens admissible into the United States (and therefore eligible to receive a visa)”, while section 1152(a) (1) (A) “prohibits discrimination in the allocation of immigrant visas based on nationality and other traits.” The Court noted as significant that section 1152(a) (1) (A) addresses only the issuance of immigrant visas, not eligibility for admissibility or entry. Ultimately, noted the Court, had Congress wanted section 1152(a) (1) (A), which was codified in 1965, to constrain the President’s authority under section 1182 (f), “it could have easily chosen language directed to that end.” Furthermore, the majority observed that prior proclamations issued by other presidents (Ronald Reagan and Jimmy Carter) suspended entry to the United States on the basis of nationality. The majority concluded that “common sense and historical practice confirm” the inapplicability of section 1152(a) (1) (A) to section 1182 (f) of the INA.
Finally, the majority addressed the plaintiffs’ contention that the Proclamation violated the Constitution establishment clause, which reads in part as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The plaintiffs argued that the President’s Proclamation violated the Establishment Clause in that it singled out Muslims for disfavored treatment. They pointed to the fact that most of the affected countries were majority Muslim, and that the information-sharing baseline criteria suggested that the results of the multi-agency review were “foreordained.” For the plaintiffs, the President’s own statements both before and during the presidential campaign, and after the elections, and that of his closest aides, calling, for example, for “a total and complete shutdown of Muslims entering the United States” or referring to a “Muslim ban” clearly demonstrated that the President’s intent in issuing this new policy. Religious animus, not national security concerns as claimed by the Administration, was the primary purpose of the Proclamation. While noting that several of Mr. Trump’s statements, which the plaintiffs claimed showed bigotry and hostility toward Muslims, the majority concluded nonetheless that the Proclamation ‘is facially neutral toward religion”, a point that the plaintiffs themselves did not contest. However, the plaintiffs asked the Court to look behind the facial justifications for the entry restrictions in order to judge the sincerity of those justifications, something that the majority refused to do. In reference to the President’s statements, the majority noted, “the issue before us is not whether to denounce the statements”; rather the issue was “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, stated the majority, “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
In light of the above arguments, the majority concluded, “the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claims.” The Court then decided to reverse the judgment of the Court of Appeals and to remand the case for further proceedings consistent with its opinion, thus landing the Trump Administration what most analysts consider “a major victory” both legally and politically.
The Court’s ruling is significant in many ways. First, it has put to rest, at least for now, a cascade of court challenges to the travel ban Mr. Trump has battled since the first days of his Administration. The Court has upheld the President’s ample statutory authority to restrict entry to the United States of noncitizens based on national security justifications. The Court’s opinion followed a long line of Supreme Court decisions that have applied a deferential standard of review to decisions regarding the admission and exclusion of foreign nationals. It will have broader effects in how courts review similar challenges in the future. Second, it is important to underscore the fact that this decision was adopted along the Court’s ideological fault line with the five ‘conservatives’ in the majority and the four ‘liberals’ in the minority. Such a clear contrast seems to suggest that the question is not fully settled in the legal landscape and a change in the Court’s majority could possibly lead to a different outcome in the future. It is important however to note that the four dissenting Justices did not, for the most part, address the arguments put forward by the majority in rejecting the plaintiffs’ contentions. The dissenting opinions authored by Justice Breyer and Justice Sotomayor made important and passionate points that did not get to the heart of issues at hand in this case. In her dissent, which was joined by Justice Ginsburg, Justice Sotomayor complained that the majority’s decision “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.” In sharper words, she lamented that majority‘s decision helped the President’s policy “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.” Third, in the age of tweets and instant communication, one interesting question raised by this case had to do with the disconnection between an order, neutral of its face, and President Trump’s statements before and after entering office in relation to the travel ban. Even though these statements clearly expressed hostility toward Muslims and, as Justice Sotomayor put it in her dissent, “a reasonable observed would conclude that the Proclamation was motivated by anti-Muslim animus,” the majority did not ultimately find it necessary to address the President’s statements because it concluded that the Proclamation provided a rational basis for the entry restrictions. For the majority, these statements were irrelevant in adjudicating the matter because the case was not about the current occupant of the White House but, more broadly, about the Constitutional office of the Executive. If one leaves asides President Trump’s anti-Muslim statements, the plaintiffs were simply not able to convince the Court that, as constructed, the Presidential Proclamation in question had violated the INA or the U.S. Constitution.
D. Suggested reading
Lire l’arrêt : Trump v. Hawaii, 585 (2018)
-F. Marouf, Ph. Torrey and S. Ardalan, “The Overlooked Legal Challenge to Trump’s Travel Ban”. Harvard Law Review, April 23, 2018 ;
-S. Pierce and D. Meissner, “Trump Executive Order on Refugees and Travel Ban”. Migration Policy Institute Issue Brief, February 2017.
To quote this contribution: J. Mangala, “Entry restrictions to the United States against nationals of eight predominantly Muslim countries: The President is within his authority to act based on national security concerns”, Cahiers de l’EDEM, août 2018.
 Iraq was removed from the list because of its special relation with the U.S.
 Chad’s inclusion infuriated the country’s government, which has been a key U.S. ally in the fight against terror in the Sahel and North Africa.
 See A. Liptak and M. Shear, “Trump’s Travel Ban Is Upheld by the Supreme Court”. The New York Times, June 26, 2018.