Introduction

On June 26, 2018, the Supreme Court of the United States issued a decision in Trump v. Hawaii, —- S.Ct. —— (2018) [PDF version]. In its decision, the Court reversed the decision of the United States Court of Appeals for the Ninth Circuit in Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) [PDF version], wherein the Ninth Circuit enjoined the entry restrictions against nationals of eight countries in President Trump’s September 24, 2017, Presidential Proclamation 9645 [PDF version] (commonly called the “travel ban”). By a 5-4 majority, the Supreme Court concluded that the President had acted within his statutory authority under section 212(f) of the Immigration and Nationality Act (INA) in issuing the suspension of entry provisions in the Proclamation, and it held that the entry restrictions did not violate the Establishment Clause of the First Amendment to the United States Constitution. In reviewing the constitutional claim, the Court applied rational basis scrutiny due to the fact that those affected were foreign nationals outside of the United States. Because the Supreme Court concluded that the plaintiffs were unlikely to succeed on the merits of their statutory or constitutional claims, it reversed the Ninth Circuit decision and remanded the case for further proceedings.

The Court’s decision in Trump v. Hawaii does not effect any immediate change in policy because it had stayed the Ninth Circuit and other lower court injunctions against the entry restrictions in November 2017. The Court’s decision reaffirms the President’s sweeping authority to exclude foreign nationals under section 212(f) when he determines that the entry of such nationals would be detrimental to the United States. The Court’s majority concluded that Hawaii and the other respondents had standing to raise Establishment Clause claims against the entry restrictions based on allegations of religious animus. However, the Court applied only rational basis scrutiny in its review of these claims as opposed to the more stringent intermediate or strict scrutiny. Here again, the Court concluded that the Proclamation provided a rational basis for the policy, and that it therefore that the plaintiffs were unlikely to succeed on the merits of their Establishment Clause claims.

The opinion of the Court in Trump v. Hawaii was authored by Chief Justice John Roberts and joined in full by Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Justices Kennedy and Thomas each also wrote concurring opinions highlighting issues that they considered of particular important, while nevertheless joining in the opinion of the Chief Justice in all parts. There were two dissenting opinions: the first was authored by Justice Stephen Breyer and joined by Justice Elena Kagan, and the second was authored by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg.

In this article, we will examine the opinion of the Court. Please see our companion articles to learn about the concurring opinions [see article] and the dissenting opinions [see article].

We have written extensively about all three versions of the “travel bans” and the associated litigation. For your convenience, we have collected these articles in a comprehensive index, which we will continue to add to as necessary [see index]. To understand the entry restrictions at issue in Trump v. Hawaii, please see our full article on Presidential Proclamation 9645 [see article]. To learn about the President’s section 212(f) authority, please see our full article on the subject, updated with information about the Trump v. Hawaii decision [see article].

Part I-A: Background of Entry Restrictions

Chief Justice Roberts began by going through the three iterations of the President Trump’s entry restrictions. We have discussed these various orders extensively on site [see index]. Here, we will briefly summarize the Chief Justice’s examination of the various issues.

On January 27, 2017, President Trump signed Executive Order 13769 (“EO-1”), published at 82 FR 8977 [PDF version]. EO-1 suspended the entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for a period of 90 days. The entry restrictions were enjoined by the United States District Court for the Western District of Washington. The United States Court of Appeals for the Ninth Circuit denied the Government’s request to lift the stay in Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam) [PDF version].

On March 6, 2017, President Trump superseded EO-1 with Executive Order 13780 (“EO-2”), published at 82 FR 13209 [PDF version] [see article]. EO-2 temporarily restricted the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, using similar national security justifications to those used in EO-1. The entry restrictions were almost immediately enjoined by two U.S. District Courts, and those injunctions were upheld by the United States Court of Appeals for the Fourth Circuit in IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) [PDF version], and by the Ninth Circuit in Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam) [PDF version].

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 travel restrictions in EO-2 in IRAP v. Trump, 137 S.Ct 2080 [PDF version] [see article] (per curiam). In so doing, the Court also significantly narrowed the scope of the injunctions, allowing the entry restrictions to, for the most part, go into effect. Justices Thomas, Alito, and Gorsuch wrote separately, taking the position that they would have allowed EO-2 to go into effect in full.

The entry restrictions in EO-2 expired before the Supreme Court heard the case. Accordingly, the Court vacated as moot the two lower court decisions in Trump v. IRAP, 138 S.Ct. 353 (2017) [PDF version] [see article], and Trump v. Hawaii, 138 S.Ct. 377 (2017) [PDF version] [see article]. Vacatur meant that the Fourth and Ninth Circuit decisions could not be relied upon as precedent going forward.

On September 24, 2017, after the Government had completed a worldwide review of vetting capabilities and processes as directed in EO-2, President Trump issued Presidential Proclamation 9645, published at 82 FR 45161 [PDF version] [see article]. Based on the national security assessment and recommendations resulting from the worldwide review, President Trump placed entry restrictions on certain specified nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The Chief Justice noted that the “[t]he Proclamation described how foreign states were selected for inclusion based on the review undertaken pursuant to EO-2” in which every country in the world was weighed against a baseline established by the Department of Homeland Security (DHS), in consultation with the Department of State (DOS) and various intelligence agencies. Countries that were determined to be deficient were given the opportunity to satisfy the deficiencies before the eight countries that were ultimately subject to restrictions were designated. President Trump accepted the recommendations of the DHS in full.

The Proclamation tailored the restrictions for each countries based on the “distinct circumstances” in each country. It exempted lawful permanent residents and aliens who had been previously granted asylum. It also provided for the discretionary issuance of waivers of the entry restrictions if a foreign national “demonstrates undue hardship” and establishes that his or her entry would be in the national interest and not pose a threat to public safety.

The Proclamation instructed the DHS to continually assess countries against the baseline and to make new recommendations regarding entry restrictions every 180 days. After the initial 180 day review period, the DHS determined that Chad had addressed its concerns and no longer warranted entry restrictions. President Trump accepted this recommendation, and issued Presidential Proclamation 9723, published at 83 FR 15937 [PDF version] [see article], lifting the entry restrictions on Chad.

Part I-B: Background of the Legal Challenge to the Proclamation

Like its predecessors EO-1 and EO-2, the Proclamation faced legal challenges.

The State of Hawaii, three individual plaintiffs (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii brought suit against the Administration in the United States District Court for the District of Hawaii, which had previously enjoined the entry restrictions in EO-2.

The plaintiffs challenged the proclamation except with regard to the entry restrictions against North Korea and Venezuela. Their challenge focused on two points.

First, they claimed that the Proclamation contravened provisions of the Immigration and Nationality Act (INA). Specifically, they argued that President Trump had not provided sufficient justification that the entry of affected individuals would be detrimental to the national interest under section 212(f) of the INA, the statute which provided the main basis for the Proclamation, as it had for EO-1 and EO-2. Furthermore, they asserted that the Proclamation improperly discriminated against the affected individuals on the basis of nationality, which they contended was prohibited by the INA.

Second, the plaintiffs claimed that the entry restrictions against the then-six majority-Muslim countries violated the Establishment Clause of the First Amendment, taking the position that the restrictions were motivated by animus toward Islam.

The Hawaii District Court granted a nationwide preliminary injunction against the enforcement of the Proclamation’s entry restrictions. The District Court granted the injunction on two statutory grounds. First, it concluded that President Trump had not made sufficient findings to justify the entry restrictions under section 212(f) of the INA. Second, the District Court held that the entry restrictions violated section 202(a)(1)(A), which prohibits nationality-based discrimination in the context of granting immigrant visas

The Government appealed the District Court decision to the Ninth Circuit. On November 13, 2017, as an initial matter, the Ninth Circuit granted a partial stay of the lower court’s injunction, limiting its scope such that it did not reach aliens from the affected countries who did not have a bona fide relationship with the United States [see article].

On December 4, 2017, the Government asked the Supreme Court to stay the injunctions against the entry restrictions that were upheld by the Fourth and Ninth Circuits. The Supreme Court granted the Government’s request, staying both injunctions and allowing for the Proclamation to be implemented in full. The Supreme Court expressed its expectation that the Fourth and Ninth Circuits would issue their decisions on the merits in an expeditious manner.

On December 24, 2017, the Ninth Circuit affirmed the District Court decision, agreeing with its conclusions about section 212(f) and section 202(a)(1)(A) in Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) [PDF version]. Specifically, the Ninth Circuit held that the entry restrictions “confict[ed] with the INA’s finely reticulated regulatory scheme” by addressing “matters of immigration already passed upon by Congress.” Id. at 685, 690. Like the District Court, the Ninth Circuit did not reach the Establishment Clause claims. However, the Ninth Circuit stayed its injunction against the entry restrictions in accordance with the Supreme Court’s December 4 order.

The Government appealed from the Ninth Circuit’s decision to the Supreme Court. On January 22, 2018, the Supreme Court granted certiorari, agreeing to hear the case. The Court heard oral arguments in the case on April 25, 2018. To learn more, please see our introductory article on the oral arguments [see blog] along with our articles on oral arguments presented by the Government [see blog] and the plaintiffs [see blog].

Part II: Supreme Court Has Authority to Review Statutory Claims

As an initial matter, the Court considered whether it or any other court even had authority to review the plaintiffs’ challenge to the Proclamation on statutory grounds.

The Government took the position that the statutory claims brought by the plaintiffs in challenging the Proclamation were not reviewable in court. In so doing, the Government appealed to the doctrine of consular nonreviewability, established in the Supreme Court decision in United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950) [PDF version]. In that decision, the Court had concluded that the exclusion of aliens is “a fundamental act of sovereignty” by the political branches, and thus not justiciable “unless expressly authorized by law.” In accord with that principle, the Government asserted that judicial review is only available to aliens who are physically present in the United States.

The Court however noted that in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) [PDF version], its only prior decision dealing with a section 212(f) proclamation, the Government made similar arguments that no judicial review was available. Notwithstanding those arguments, the Court reached the merits in Sale. Furthermore, the Chief Justice explained that “[t]he Government does not argue that the doctrine of consular nonreviewability goes to the Court’s jurisdiction, … nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over the plaintiffs’ claims.”

For those reasons, the Court “assume[d] without deciding” that the statutory claims brought by the plaintiffs were reviewable. The Court proceeded on that basis.

Part III-A: Proclamation Fell Within President’s Section 212(f) Authority

Next, the Court addressed whether the entry restrictions were a valid exercise of the President’s section 212(f) authority. First, the Court excerpted section 212(f) in the pertinent part:

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 appropriate.

The Court began by noting that section 212(f), by its own terms, “exudes deference to the President in every clause.” It is for this reason, Chief Justice Roberts cited to Sale, 509 U.S., at 187 in explaining that “[i]t is therefore unsurprising that we have previously observed that [section 212(f)] vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA.” The Chief Justice also cited to the decision of the United States Court of Appeals for the District of Columbia Circuit in Abourezk v. Reagan, 785 F.2d 1043, 1049, n.2 (D.C. Cir. 1986) [PDF version], where that Court described section 212(f) as providing the President with “sweeping proclamation power” to supplant other inadmissibility provisions in the INA. Interestingly, Abourezk, which we discussed briefly in our main article on section 212(f) [see section], was authored by then-judge, now-Justice, Ruth Bader Ginsburg [see section].

The Court majority thus agreed that the Proclamation at issue in the instant case “falls well within [section 212(f)’s] comprehensive delegation.” Indeed, the Court explained, the only prerequisite to a section 212(f) proclamation is that the President must make the finding that the entry of covered aliens “would be detrimental to the interests of the United States.” In the instant case, the Court majority concluded that the President had clearly satisfied this requirement, describing the multi-agency review ordered by the President and the fact that the Proclamation was ultimately based on the findings and results of that review.

The plaintiffs ventured several lines of argument against the President’s exercise of section 212(f) authority in the instant case, of which were rejected by the Court majority and left unaddressed by the four dissenting Justices. We will review these arguments and examine why the Court majority ultimately found them unpersuasive.

First, the plaintiffs argued that the findings made in support of the President’s determination that the entry of aliens from the affected countries were insufficient for supporting the Proclamation. Specifically, the Chief Justice described their argument as taking the position “that the Proclamation fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk.” The plaintiffs argued that the President’s stated concerns about deficient vetting by the affected nations were insufficient because the Proclamation allowed certain individuals from the affected countries to enter the United States on nonimmigrant visas.

The Court majority explained that these arguments were premised on the assumption that a section 212(f) proclamation must explain the finding that the entry of the affected aliens would be detrimental in to the United States “with sufficient detail to enable judicial review.” The majority concluded that, “even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained.” In fact, the Court majority compared the detailed findings in the instant Proclamation favorably with past section 212(f) proclamations which had afforded only a few sentences to explaining the determination of the president.

Furthermore, the Court rejected the plaintiffs’ position that it should launch an inquiry into the persuasiveness of the President’s asserted justifications for including the affected nations. Here, the Chief Justice cited to Sale, 509 U.S., at 187-188, wherein the Sale Court held that “'[w]hether the President’s chosen method’ of addressing perceived risks is justified from a policy perspective is ‘irrelevant to the scope of his [section 212(f)] authority.’” The majority also cited to Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010) [PDF version], where in the Court held that, when the President adopts “a preventative measure … in the context of international affairs and national security,” the President is “not required to conclusively link all the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.”

The plaintiffs also claimed that the lack of a definitive end date should render the Proclamation suspect under section 212(f). The Court agreed that the statute’s use of the term “suspend,” which is “often connotes a ‘defer[ral] till later,’” citing to Webster’s Third New International Dictionary 2303 (1996). However, the Court rejected the argument that section 212(f) therefore necessarily requires the President “to prescribe in advance a fixed end date for entry restrictions.” Here, the majority reasoned that section 212(f) inclusion of the phrase “for such period as he shall deem necessary” allows the President to link the duration of entry restrictions, “implicitly or explicitly, to the resolution of the triggering condition.” The Court cited to several historical examples of section 212(f) proclamations that explicitly linked the duration of entry restrictions to the cessation of the conditions which triggered them, and added that “not one of the 43 suspension orders issued prior to this litigation has specified a precise end date.” Regarding the instant Proclamation, the Court noted that the entry restrictions were tied to “inadequacies and security risks” within the covered nations over which the United States has no control, but that the Proclamation requires that the entry restrictions be assessed 180 days, and that after the initial review period, President Trump had already lifted the suspension of entry for nationals of Chad upon determining that the conditions in Chad that prompted the entry restrictions had been satisfactorily resolved.

Finally, the plaintiffs argued that the term “class of aliens” in section 212(f) requires the President to specify a well-defined group of individuals who share a common “characteristic” separate from their nationality. The Court rejected this claim because the plain text of section 212(f) includes no such requirement. Likewise, the majority rejected the plaintiffs’ contention that the class defined by the President cannot be “overbroad,” because there is also no support for this position in the text of section 212(f).

Part III-B: Court Rejects Arguments that Structure and History of Section 212(f) Does Not Support the Proclamation

The plaintiffs made additional arguments relating to the legislative purpose of section 212(f) in light of the INA. Their primary argument was that section 212(f) does not give the President the authority to make policy judgments on issues that Congress has previously addressed in a different policy. Applying this line of reasoning to the Proclamation at issue in the instant case, the plaintiffs contended that Congress had already addressed the issue of countries that do not share sufficient information that the United States needs for vetting purposes. First, they noted that in section 291 of the INA, Congress placed the burden of proof of establishing admissibility on the alien. Second, they cited to section 217 of the INA, wherein Congress allowed certain countries that cooperate with the United States in information sharing to partake in the Visa Waiver Program.

Chief Justice Roberts, writing for the majority, stated that the Court “may assume that [section 212(f) does not allow the President to expressly override particular provisions of the INA.” With that point being granted, the majority nevertheless concluded that “plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system.”

Regarding the plaintiffs’ first argument, the majority found that the Proclamation in fact “supports Congress’ individualized approach for determining admissibility.” To this effect, the Court explained that a consular officer may only make a reasoned admissibility determination based on sufficient and sufficiently reliable information. Thus, the Court found unpersuasive the plaintiffs’ argument that the entry restrictions were unnecessary because consular officers could simply deny visas in cases where an alien does not sustain his or her burden of proof for establishing inadmissibility, because “the INA certainly does not require that systemic problems such as the lack of reliable information be addressed only in a progression of case-by-case admissibility determinations.” The Court explained that “[a] critical finding of the Proclamation is that the failure of certain countries to provide reliable information prevents the Government from accurately determining whether an alien is inadmissible or poses a threat.”

Regarding the second argument of the plaintiffs’ the majority rejected the claim that the existence of the Visa Waiver Program precluded the Proclamation’s restrictions on entry. The majority reasoned that “Congress’s decision to authorize a benefit for ‘many of America’s closest allies,’ did not implicitly foreclose the Executive from imposing tighter restrictions on nationals of certain high-risk countries.” (Internal citations omitted.) The Court added that “in establishing a select partnership covering less than 20% of the countries in the world, Congress did not address what requirements should govern the entry of nationals from the vast majority of countries that fall short of that gold standard-particularly those nations presenting heightened terrorism concerns.”

On the foregoing points, the majority concluded that “[a]lthough plaintiffs claim that their reading [of INA 212(f)] preserves for the President a flexible power to ‘supplement’ the INA, their understanding of the President’s authority is remarkably cramped…”

The Court then addressed claims by the plaintiffs that the background and legislative history of section 212(f) did not allow for the entry restrictions in the Proclamation. In support of their position, the plaintiffs noted that precursor statutes to section 212(f) (1918 and 1941), which was enacted in 1952, limited the President’s suspension power to exigencies in which it would be difficult for Congress to act promptly. Specifically, the predecessor statutes had limited the President’s exclusion authority to times of “war” and “national emergency,” respectively. The plaintiffs inferred from these predecessor statutes that Congress intended for there to be similar limitations to section 212(f). However, the Court noted that the drafting history of the legislation suggested the exact opposite, in that Congress explicitly removed the “national emergency” standard which existed in the 1941 statute when drafting the current section 212(f). Instead of conditioning the President’s suspension authority on an exigency, “Congress instead chose to condition the President’s exercise of the suspension authority on a different finding: that the entry of an alien or class of aliens would be detrimental to the interests of the United States.”

The plaintiffs also claimed that limitations on the President’s suspension authority can be inferred from prior section 212(f) proclamations. The plaintiffs maintained that the 43 prior proclamations were tailored to target either discrete groups of foreign nationals who engaged in conduct “deemed harmful by the immigration laws” or entire nationalities. The majority suggested that it would not be willing to confine the President’s section 212(f) authority based on prior applications. However, it stated that even if it were to consider this, “the historical evidence is more equivocal than plaintiffs acknowledge.” For example, the Court noted that several section 212(f) proclamations targeted nationals not for their own activities, “but instead to retaliate for conduct by their governments that conflicted with U.S. foreign policy interests.” The Court listed several examples, including President Barack Obama’s 2014 suspension of entry of Russian nationals working in the financial services, energy, mining, engineering, or defense sectors in response of the Russian annexation of Crimea; President Bill Clinton’s 1997 suspension of entry of Sudanese government and military personnel due to Sudan’s refusal to comply with United Nations resolutions, and President Ronald Reagan’s 1986 suspension of entry for nearly all nationals of Cuba to apply pressure to the Cuban government for having breached an immigration agreement 15 months earlier.

On this final argument, the Court concluded that “[t]he more ad hoc [plaintiffs’] account of executive action-to fit the history into their theory-the harder it becomes to see such a refined delegation in a statute that grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.”

Part III-C: Proclamation Did Not Violate Section 212(a)(1)(A) of the INA

The plaintiffs claimed that the entry suspension provisions of the Proclamation violated section 202(a)(1)(A) of the INA. Section 202(a)(1)(A) provides that “no person shall … 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.” Notwithstanding that the language of section 202(a)(1)(A) specifies that it applies to the issuance of immigrant visas, the plaintiffs argued that the statute should be read as, in the Court’s description, “prohibiting nationality-based discrimination throughout the entire immigration process…” The plaintiffs’ argument was based in the assertion that section 202(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.

First, the Court noted that the plaintiffs’ argument addressed only the validity of the entry restrictions on immigrant travel. This is because, while section 212(a)(1)(A) is limited to the issuance of immigrant visas, section 212(f) allows the President to suspend the entry of “immigrations or nonimmigrants.” (Emphasis added.) Thus, the Court concluded that, “[a]t a minimum, then, plaintiffs’ reading would not affect any of the limitations on nonimmigrant travel in the Proclamation.”

However, the majority then rejected the plaintiffs’ argument wholesale, finding that “it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.” In footnote 3 of its decision, the Court cited to a number of INA provisions that distinguish between visa issuance and admission (e.g., sections 101(a)(4); 212(a); 212(a)(3)(D)(iii); and 212(h)(1)(A)(i)). Section 212 of the INA defines those individuals who are eligible for entry or admission. Section 221(g) of the INA provides that, generally, an alien who is determined to be inadmissible under section 212 while applying for a visa is screened out as being “ineligible to receive a visa.” Secondly, even if a consular officer grants an alien a visa, the alien may still be denied entry if, at the occasion of the alien’s application for admission, an immigration officer determines that he or she is inadmissible. Section 212(f) is one of the numerous inadmissibility provisions.

From this analysis, the majority concluded that section 212(f) and section 202(a)(1)(A) “thus operate in different spheres…” Section 212 of the INA “defines the universe of aliens admissible into the United States (and therefore eligible to receive a visa).” Of the aliens in the universe of aliens eligible to receive a visa, “[section] 202(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits.” The Court noted as significant that section 202(a)(1)(A) addresses only the issuance of immigrant visas, not eligibility for admissibility or entry. Ultimately, the Court noted, had Congress wanted for section 202(a)(1)(A), which was codified in 1965, to constrain the President’s section 212(f) authority, “it could have easily chosen language directed to that end.”

The Court observed that prior proclamations have suspended entry on the basis of nationality. In 1986, President Ronald Reagan issued Proclamation No. 5517, which suspended the entry of all Cuban nationals as immigrants. In 1979, President Jimmy Carter involved the similar section 215(a)(1) to deny and revoke the visas of all Iranian nationals. The majority stated that “[c]ommon sense and historical practice confirm” the inapplicability of section 202(a)(1)(A) to 212(f). The majority noted that under the plaintiffs’ reading of the statutes, not only would render those foregoing proclamations unlawful, but also the President’s restriction on the entry of nationals from North Korea in the instant case. Notably, the plaintiffs had opted not to challenge the Proclamation’s suspension of entry of nationals of North Korea.

In advancing the above theories, the majority explained, the plaintiffs “f[ell] back on an implicit exception for Presidential actions that are ‘closely drawn’ to address ‘specific fast-breaking exigencies.’” Writing for the majority, Chief Justice Roberts stated that there is an “absence of any textual basis for such an exception,” indicating that “Congress did not intend for [section 212(a)(1)(A)] to limit the President’s flexible authority to suspend entry based on foreign policy interests.” Furthermore, the Court explained that the “plaintiffs’ proposed exigency test would require courts, rather than the President, to determine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute.” In Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) [PDF version], the Court concluded that courts would be unable to assess the adequacy of the Executive’s reasoning for determining that nationals of a certain country pose a threat even if the reasoning were provided. Regarding the instant proclamation, the Chief Justice wrote that the text of section 202(a)(1)(A) “offers no standards that would enable courts to assess, for example, whether the situation in North Korea justifies entry restrictions while the terrorist threat in Yemen does not.”

Part IV-A: Plaintiffs Have Standing to Bring Establishment Clause Claims

In addition to the statutory claims discussed above, the plaintiffs also argued that the Proclamation’s entry restrictions were issued for the unconstitutional purpose of excluding Muslims from the United States. In short, the plaintiffs argued that the Proclamation violated the Establishment Clause of the First Amendment to the United States Constitution. Before analyzing the claims though, the Supreme Court addressed the threshold question of whether the plaintiffs had Article III standing to bring their Establishment Clause claims.

Under Section 2 of Article III of the U.S. Constitution, federal courts have the authority to decide legal questions “in the course of resolving ‘cases’ or ‘controversies.’” In the instant case, the majority noted that there was an issue of standing due to the fact that “the entry restrictions apply not to plaintiffs themselves but to others seeking the United States.”

The plaintiffs argued that they had standing on the basis that the Proclamation “establishes a disfavored faith” and violated “their own right to be free from federal [religions] establishments.” (Internal citations omitted.) However, the Court found it unnecessary to resolve whether the plaintiffs had standing on these bases because there was another ground on which they had standing. To this effect, the Chief Justice wrote that “[t]he three individual plaintiffs assert another, more concrete injury: the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country.” Regarding this basis for standing, the majority “agree[d] that 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.” The Court cited to two previous decisions where it had held that U.S. citizens have standing to bring claims regarding violations of their personal rights that allegedly occurred due to the Government’s exclusion of foreign nationals: Kerry v. Din, 576 U.S __, __, 135 S.Ct 2128, __ (2015) [PDF version] (plurality opinion); id., at __, 135 S.Ct., at 2139 (KENNEDY, J., concurring in judgment); and Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) [PDF version]. Furthermore, when the Court issued a partial stay of the Fourth and Ninth Circuit injunctions against EO-2 in Trump v. IRAP, 137 S.Ct., at 2089 (2017) [PDF version], it held that an American individual who has “a bona fide relationship with a particular person seeking to enter the country … can legitimately claim concrete hardship if that person is excluded.”

Part IV-B: Relying on President’s statements, Plaintiffs Question Objective of the Proclamation

The First Amendment reads in pertinent part as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Interpreting the Establishment Clause, the Court held in Larson v. Valente, 456 U.S. 228, 244 (1982) [PDF version], that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be preferred over another.”

The plaintiffs alleged that the President’s Proclamation violated the Establishment Clause in that it singled out Muslims for disfavored treatment. To this effect, they alleged that the suspension of entry operated as a “religious gerrymander” because most of the affected countries were majority Muslim,the information-sharing baseline criteria suggested that the results of the multi-agency review were “foreordained,” and the President’s own statements betrayed that the primary purpose of the Proclamation was reflected animus against Muslims.

The plaintiffs cited to several statements made by President Trump, both before and after he was inaugurated, to support their assertion that the entry restrictions were motivated by religious animus and not national security concerns. Below, we will list the statements noted by the majority in its opinion (all internal citations omitted in the following list):

As a candidate, the President published a statement 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.” This statement remained on his campaign website until May 2017.
As a candidate, the President stated that “Islam hates us,” and he added that the United States was “having problems with Muslims coming into the country.”
After being elected President, the President was asked whether violence in Europe affected his plans to “ban Muslim immigration.” He replied: “You know my plans. All along, I’ve been proven to be right.”
After the President was inaugurated, one of his advisers described their discussion after the President “first announced it, he said, ‘Muslim ban.’” According to the adviser, then-candidate Trump asked him to “Put a commission together. Show me the right way to do it legally.” The adviser stated that he then assembled a group of lawmakers and lawyers that “focused on, instead of religion, danger…. [The order] is based on places where there [is] substantial evidence that people are sending terrorists into our country.” Although not named stated explicitly in the Supreme Court opinion, this refers to an interview given by Rudy Giuliani.
After the President issued EO-2, replacing EO-1, he expressed regret that it had been “watered down.” In the same statement, he called for a “much tougher version” of the “Travel Ban.” After stating that it “should be far larger, tougher, and more specific,” he lamented that “stupidly that would not be politically correct.”
On November 29, 2017, the President retweeted links to three anti-Muslim propaganda videos. His deputy press secretary denied that the President thinks that Muslims are a threat to the United States. He added that the President “has been talking about these security issues for years now, from the campaign trail to the White House.” He stated that the President addressed these security issues “with the travel order that he issued this year and the companion proclamation,” referring to the Proclamation at issue in the instant case. The United States Court of Appeals for the Fourth Circuit had cited to this example in IRAP v. Trump, 883 F.3d 233, 267 (4th Cir. 2018) [PDF version].

Before continuing with its analysis, the majority stated that “[t]he President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.” The majority went on to note several examples of past Presidents “us[ing] that power to espouse the principles of religious freedom and tolerance on which this nation was founded.” However, the majority added that “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.”

The Court noted in the conclusion of the section that the case “differs in numerous respects from the conventional Establishment Clause claim.” The reason, the majority explained, was that the Proclamation “is facially neutral toward religion.” The plaintiffs acknowledged the facial neutrality of the Proclamation, but they asked the Court to look behind the facial justifications for the entry restrictions in order to judge the sincerity of those justifications. Regarding the statements cited to by the plaintiffs, the Court stated that “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 an important passage regarding the assessment of the President’s statements, the majority stated that it “must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

Part IV-C: Court Applies Rational Basis Review

Having established that the plaintiffs had standing to bring their claims, the majority moved to determine the standard under which it should review the claims.

The Court explained that in past rulings it has generally been deferential to the political branches regarding the admission and exclusion of foreign nationals. In Fiallo v. Bell, 430 U.S. 787, 792 (1977) [PDF version], the Court held that the admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” In Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) [PDF version], the Court held that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power.” The Court explained in Mathews v. Diaz, 426 U.S. 67, 81, 96 (1976) [PDF version], that it will generally defer to the political branches because decisions on the admission or exclusion of foreign nationals may implicate “relations with foreign powers” or involve “classifications defined in the light of changing political and economic circumstances…”

However, the Court’s general deference to the political branches does not mean that it has not reviewed claims in this area. The majority explained that “although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.” The most important precedent in this area came in Kleindienst v. Mandel, 408 U.S. 753 (1972) [PDF version]. That case concerned the exclusion of a self-described “revolutionary Marxist” who had been invited to speak at a conference at Stanford University. Id. at 756-57. The professors who had invited Mandel brought suit after he was excluded. The Court concluded that the professors had standing because the exclusion implicated their constitutional “right to receive information.” Id. at 764-65. However, the Court only reviewed whether the Executive had given a “facially legitimate and bona fide” reason for excluding Mandel. Id. at 769. In ultimately ruling in favor of the Government, the Court held that “when the Executive exercises this [delegated] power [over admission] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the constitutional interests of U.S. citizens. Id. at 770.

In short, the Mandel court only examined whether the Executive had provided a “facially legitimate and bona fide” reason for excluding an alien. Because the Executive satisfied that test in Mandel, the Court’s inquiry ended. It did not proceed to look behind the “facially legitimate and bona fide reason” nor did it balance that reason against the constitutional interest of the plaintiffs. It goes without saying that the Mandel standard is highly favorable to the Government in exclusion cases.

The majority in the instant case noted that the dissent authored by Justice Sotomayor argued that Mandel should not apply to the instant case [see section]. However, the majority noted that Mandel has been applied “across different contexts and constitutional claims. Please note that this and other citations to “the dissent” refer to the dissent authored by Justice Sotomayor. Notably, the Court cited to Justice Kennedy’s concurring opinion in Din, 135 S.Ct. at 2141 (statutory citation for visa denial was sufficient), and in Fiallo, 430 U.S. at 795 (giving immigration preferences to mothers of illegitimate children). The majority added that in Humanitarian Law Project, 561 U.S., at 34, it held that “the lack of competence on the part of the courts [on questions of national security] is marked.”

In Matthews, 426 U.S., at 81-82, the Court held that “[a]ny rule of constitutional law that would inhibit the flexibility” of the President “to respond to changing world conditions should be adopted only with the greatest caution…” The majority explained that were it to apply only the standard or review set forth in Mandel, its inquiry would end after determining whether the Proclamation was “facially legitimate and bona fide.” However, in oral arguments, the Government took the position that Mandel should be “the starting point” of its analysis. Accordingly, the Court opted to look behind the face of the Proclamation, but solely “to the extent of applying rational basis review.” Under this standard, the Court would “consider[] whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes.” Thus, the Court agreed to consider the plaintiffs’ “extrinsic evidence,” but it would uphold the policy provided that it was plausibly related to the Government’s stated objectives.

Part IV-D: Court Concludes That Proclamation Did Not Violate the Establishment Clause

Given the contours of rational basis review, the Court stated that it “hardly ever strikes down a policy as illegitimate under rational basis scrutiny.” The Court cited to some of the limited examples where it did strike down policies on rational basis grounds. In Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) [PDF version], the Court explained that laws that fail under the standard tend to lack any purpose other than a “bare … desire to harm a politically unpopular group.” In Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448-450 (1985) [PDF version], the Court struck down a local zoning ordinance which singled out homes for the intellectually disabled for a special permitting process. In Romer v. Evans, 517 U.S. 620, 632, 635 (1996) [PDF version], the Court struck down a State constitutional amendment that excluded gays and lesbians from the protection of antidiscrimination laws.

The majority concluded that the Proclamation did not fit into the pattern of cases where the Court had determined that certain policies failed under rational basis scrutiny. It explained that the Proclamation was expressly premised on two legitimate purposes: (1) “preventing entry of nationals who cannot be adequately vetted,” and (2) “inducing other nations to improve their [vetting] practices.” The majority noted that the text of the Proclamation bore no mention of religion. Furthermore, the majority rejected the assertion of the dissent that there was proof of animus in the fact that five of the seven nations covered by the Proclamation at the time of the decision had Muslim-majority populations, noting that the countries covered represented only 8-percent of the world’s population of Muslims and that those countries were previously designated by Congress or by prior administrations as posing national security risks under section 217(a)(12)(A) of the INA. The majority suggested that the dissent avoided this conclusion by applying a standard of review that bore little resemblance to rational basis review.

The majority also noted that the entry restrictions were the result of a worldwide review completed by multiple Cabinet officials and their agencies. The majority noted that the dissent argued that the inclusion of Somalia, which met the information-sharing requirements, but the exclusion of Iraq, which did not, discredited the findings of the review. However, the majority concluded that the Proclamation explained that this decision was based on the distinct conditions in each country: that Somalia was included because of its Government’s lack of control over its territory, and Iraq was excluded because of its cooperation with the U.S. Government. Regarding the exclusion of Iraq, the majority added that it is “difficult to see how exempting one of the largest predominantly Muslim countries in the region … can be cited as evidence of animus toward Muslims.”

The majority found fault with other points of the dissent’s reasoning. First, the majority did not find the fact that the DHS report referenced by the Proclamation was only 17 pages in length to be significant. Here, the majority stated that “a simple page count offers little insight into the actual substance of the final report, much less predecision materials underlying it.” It noted that under 5 U.S.C. 552(b)(5), deliberative materials are exempted from Freedom of Information Act disclosure. Second, it characterized the dissent as “challeng[ing] the entry suspension based on [its] perception of its effectiveness and wisdom.” To this effect, the majority stated that “we cannot substitute our own assessment for the Executive’s predictive judgment on such matters…” The majority stated that it does not “defer to the Government’s reading of the First Amendment,” but that “the Executive’s evaluation of the underlying facts is entitled to appropriate weight…” Citing to Humanitarian Law Project, 561 U.S., at 33-34, it explained that this is especially important where “sensitive and weighty issues of national security and foreign affairs” are involved.

The majority concluded by citing to three additional points that buttressed the Government’s argument that the entry restrictions advanced a legitimate national security interest:

1. Three Muslim-majority countries that were subject to entry restrictions in EO-1 were no longer subject at the time of the resolution of Trump v. Hawaii. The Proclamation itself makes clear that the restrictions are conditional and reviewed every 180 days. In removing the entry restrictions on Chad, the President explained that Chad had engaged the U.S. Government to resolve its deficiencies, and that Libya was currently taking steps to do the same.
2. The Proclamation included carve-outs for certain classes of nationals from the affected countries.
3. The Proclamation provides for a limited waiver program for individuals who are subject to the entry restrictions. The majority noted that this was similar to humanitarian exceptions in President Jimmy Carter’s Executive Order No. 12206, which targeted Iranian nationals. We discuss the waiver issue further in our section on Justice Breyer’s dissent, which focused largely on this point [see section].

Part IV-D: Court Abrogates Korematsu v. United States

Justice Sotomayor’s dissent involved the Supreme Court decision in Korematsu v. United States, 323 U.S. 214 (1944) [PDF version]. In Korematsu, the Court upheld a policy where the Government interned individuals of Japanese ancestry during World War II, including U.S. citizens, solely on the basis of race.

The Court suggested that Justice Sotomayor invoked Korematsu for “rhetorical advantage.” However, it asserted that “Korematsu has nothing to do with this case.” The Court distinguished the situations: “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”

The Chief Justice went further, however, and wrote that “Korematsu was gravely wrong the day it was decided, [and] has been overruled in the court of history…” He quoted from the dissent authored by then-Justice Robert Jackson in Korematsu, who wrote that the decision “has no place in law under the Constitutution.” Id. at 238 (Jackson, J., dissenting).

Regarding the instant case, the majority stated that the Government’s justification of the policy was sufficient to survive rational basis scrutiny. It added that it took no position on the “soundness of the policy,” but held only that the “plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.”

Part V: Supreme Court Reverses Ninth Circuit Decision and Remands For Further Proceedings

Having concluded that the plaintiffs were unlikely to succeed on the merits of their claims, the Supreme Court reversed the grant of the preliminary injunction against the entry restrictions as an abuse of the lower courts’ discretion. It remanded the case to the lower courts for further proceedings, if appropriate. The majority did not consider “the propriety of the nationwide scope of the injunction issued by the District Court” because it concluded that the injunction, in any scope, was ill-warranted.

Conclusion

The opinion of the Court in Trump v. Hawaii took a broad view of the President’s authority to suspend the entry of foreign nationals under section 212(f) of the INA. Furthermore, it 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. Although it is significant that the Supreme Court ultimately upheld President Trump’s entry restrictions, the decision will have broader effects in how courts review similar challenges in the future.

The Court did not ultimately find it necessary to address President Trump’s statements before and after entering office. This is because it concluded that the Proclamation provided a rational basis for the entry restrictions. In short, in the view of the majority, the case was not only about this President, but more broadly about the Constitutional office of the Executive. Accordingly, the majority afforded President Trump the same deference that courts have afforded past Presidents in similar matters.

Although the decision is significant in the context of interpreting section 212(f) and adjudicating cases where U.S. citizens assert that their rights are abridged by the denial of entry to a foreign national, questions still remain about the scope of section 212(f) authority, and, beyond that, about the President’s inherent Constitutional authority in this area. Accordingly, one could question whether the somewhat broader EO-1 would have survived scrutiny, although it is likely it would have under the standard of review applied by the majority in the instant case. We explore some of the open questions about these issues in our main article on section 212(f) of the INA [see article].

Now that the case returns to the lower courts, we will update the site with more developments if and when they become available. Please see our full index on the issue for related articles and our articles on the other opinions in the instant case [see index].