Introduction

On June 26, 2018, the Supreme Court of the United States issued a decision in Trump v. Hawaii, —- S.Ct. —— (2018) [PDF version]. The case involved the restrictions on entry of nationals from certain countries in President Donald Trump’s September 24, 2017 Presidential Proclamation 9645, known as the “travel ban.” A five-Justice majority in Trump v. Hawaii rejected arguments that the President had exceeded his authority under the Immigration and Nationality Act (INA) and ruled that claims that the entry restrictions violated the Establishment Clause were unlikely to succeed under rational basis scrutiny, which was the Court’s chosen standard of review. Accordingly, the Court vacated a decision of the United States Court of Appeals for the Ninth Circuit enjoining the entry restrictions and, in a separate order, also vacated a Fourth Circuit injunction against the entry restrictions. The effect of the decision is that the “travel ban” remains in place while the case is remanded to the lower courts for further proceedings consistent with the Supreme Court decision. However, the Trump v. Hawaii decision does not effect a change in the law due to the fact that the Court had already enjoined the lower court injunctions against the entry restrictions pending its disposition of the case.

In this article, we will examine the two concurring opinions in Trump v. Hawaii. The first was authored by Justice Anthony Kennedy and the second by Justice Clarence Thomas. Both Justices joined the opinion of the court authored by Chief Justice John Roberts in full but wrote separately to address additional issues. Although the concurring opinions are not binding, they are worth reading and considering for future cases, most notably Justice Thomas’s discussion of nationwide injunctions issued by Federal district courts.

Before reading this article, please see our comprehensive article on the opinion of the court authored by Chief Justice Roberts [see article]. For a collection of articles on Presidential Proclamation 9645 and the prior versions of the “travel ban,” please see our on-site index [see index].

Concurring Opinion: Justice Anthony Kennedy

Justice Anthony Kennedy joined the opinion of the Court in full, but he wrote a separate concurring opinion in which he elaborated on a few points. Justice Kennedy would announce his retirement from the Court two days after Trump v. Hawaii was issued [see blog].

Justice Kennedy observed that there “may be some common ground” between the opinion of the Court and the dissenting opinions. Specifically, he noted that the majority “does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus…” The “inexplicable by anything but animus” standard derives from Romer v. Evans, 517 U.S. 620, 632 (1996) [PDF version], a decision authored by Justice Kennedy striking down a Colorado provision that precluded specific legal protections based on sexual orientation.

Justice Kennedy noted that it is unclear whether proceedings below can properly continue in the case in light of the Court’s opinion and “the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs…” This, he added, “is a matter to be addressed in the first instance on remand.” He cautioned that if proceedings do continue, the lower courts will have to ensure “that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.”

Justice Kennedy then alluded to the statements of President Trump, both before and after he took office, that were at issue in Trump v. Hawaii. He observed that while “[t]here are numerous instances in which the statements and actions of Government officials are not subject to judiciary scrutiny or intervention … [t]hat does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.” He added that “the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and its meaning and its promise.” He concluded by stating that “[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.”

In his concurring opinion, Justice Kennedy sought to make clear that even when the judiciary cannot review statements made by officials or intervene in cases are brought against their actions, officials still have an obligation to adhere to the Constitution. The decision effectively takes the position that the Court’s decision was not in any way an endorsement of the President’s statements before and after taking office, but rather a conclusion based on the immigration statutes and the Constitution. His note regarding further proceedings was a reminder to lower courts to carefully follow the Supreme Court’s opinion in moving forward with the case.

Concurring Opinion: Justice Clarence Thomas

Like Justice Kennedy, Justice Thomas joined the opinion of the Court in full. He wrote separately to address multiple substantive points. First, Justice Thomas expanded upon the Court’s reasoning in rejecting plaintiff’s statutory and Establishment Clause claims against the entry restrictions, stating that the opinion of the Court “highlights just a few of the many problems with the plaintiffs’ claims.” Second, Justice Thomas devoted most of his dissent to the issue of nationwide injunctions issued by Federal district courts, a situation that the Court will likely have to address in forthcoming cases. We will address Justice Thomas’s points in the following subsections.

Justice Thomas on the Statutory Claims

First, Justice Thomas addressed plaintiffs section 212(f) of the Immigration and Nationality Act (INA) claim.

Justice Thomas stated that “section [212(f)] does not set forth any judicially enforceable limits that constrain the President.” Here, he cited to Webster v. Doe, 486 U.S. 592, 600 (1988) [PDF version], where the Court rejected a statutory claim brought by a CIA employee who was fired on the basis of his sexual orientation, because the language of the relevant statute giving the CIA Director the power to terminate employees precluded review under the Administrative Procedures Act (APA).

Justice Thomas then went a step further. He took the position that section 212(f) could not constrain the President even if it were worded differently because “the President has inherent authority to exclude aliens from the country.” Justice Thomas cited to the Supreme Court’s decision in U.S. ex re. Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950) [PDF version], wherein the Court held that “[t]he exclusion of aliens is a fundamental act of sovereignty.” Furthermore, the Saughnessy Court wrote that “[t]he right to [exclude aliens] stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Justice Thomas also cited to his recent dissenting opinion in Sessions v. Dimaya, 138 U.S. 1204, 1248-49 (2018) (THOMAS, J., dissenting) [PDF version] [see article], where he cited favorably to the same portions of Knauff.

Justice Thomas’ concurrence highlights the fact that there are still questions about the scope of the President’s authority to exclude aliens, which is codified in statute at section 212(f). Specifically, to what extent does the President have inherent authority under the Constitution to exclude aliens separate from the codification of exclusion authority in the INA? While the Opinion of the Court took a broad view of section 212(f), it did not reach the additional Constitutional point addressed by Justice Thomas. It is possible that this issue will arise in a future case, but the Court did not find it necessary to reach in the instant case since it determined that the entry restrictions fell within the scope of section 212(f).

Justice Thomas on Establishment Clause Claims

Justice Thomas then addressed the plaintiffs’ Establishment Clause claims, briefly examining the reasons why he believed that the claims rightfully failed.

First, Justice Thomas stated that “the Establishment Clause does not create an individual right to be free from all laws that a ‘reasonable observer’ views as religious or antireligious.” Here, he cited to two of his own concurring opinions: Town of Greece v. Galloway, 134 S.Ct. 1811, 1837-38 (2014) [PDF version] (THOMAS, J., concurring in part and concurring in judgment); Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 52-53 (2004) [PDF version].

Justice Thomas noted that the plaintiffs could not raise any additional First Amendment claims, “since the alleged religious discrimination in this case was directed at aliens abroad.” Here, he cited to U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) [PDF version], wherein the Court held that an alien who had no voluntary attachment to the United States could not bring a Fourth Amendment claim based on a search by U.S. authorities of his foreign residence.

Finally, Justice Thomas took the position that “even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive.”

Justice Thomas on Universal Injunctions Issued by District Courts

The primary focus of Justice Thomas’s dissent was nationwide, or universal, injunctions issued by district courts. In the instant case, two separate district courts had enjoined the entry restrictions in Presidential Proclamation 9645. This followed several injunctions that were issued against the first two iterations of President Trump’s entry restrictions. The Court did not reach the question of the universality of the injunctions issued against Proclamation 9645 because it concluded that enjoining the Proclamation was improper regardless of the scope of the injunction.

In prefacing his discussion of universal injunctions, Justice Thomas explained that he refers to them as “universal” rather than “nationwide” “because [the term] is more precise.” He stated that universal injunctions “are beginning to take a toll on the federal court system-preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.” By “forum shopping,” Justice Thomas meant when plaintiffs look to bring a case against a Federal policy before a district judge that they consider likely to rule in their favor. He added that he believes that courts, such as the ones who enjoined the entry restrictions in the instant case, “have begun imposing universal injunctions without considering their authority to grant such sweeping relief.” He stated that he is skeptical of the authority of district courts to issue universal injunctions, noting that they did not emerge until about a century and a half after the founding. Finally, he proposed that “they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts…,” and that Congress must address their legality if they continue to be issued in growing numbers.

Before continuing, it is worth noting that Justice Neil Gorsuch questioned plaintiffs’ counsel in oral arguments about whether the injunctive relief they sought was appropriate [see blog]. However, Justice Gorsuch did not join in Justice Thomas’s concurring opinion.

Part I: Justice Thomas on the Judicial Authority to Grant Equitable Relief

Justice Thomas asserted that there can only be two possible legitimate sources of authority for district court issuance of universal injunctions: statutory or Constitutional. Here, he cited to his own concurring opinion in Missouri v. Jenkins, 515 U.S. 70, 124 (1995) [PDF version] (THOMAS, J. concurring), wherein he assumed that “the remedial authority of the federal courts is inherent in the “judicial power” in Article III of the U.S. Constitution. Because no statute expressly authorizes universal injunctions, Justice Thomas concluded that “the only possible bases for these injunctions are a generic statute that authorizes equitable relief or the courts’ inherent constitutional authority.” However, citing again to his concurrence in Jenkins, Justice Thomas concluded that neither of those proposed bases for universal injunctions would permit relief that is “[in]consistent with our history and traditions.”

Justice Thomas began by discussing general statutory grants of equitable authority to courts. He stated that the Supreme Court has never read these statutes “as giving federal courts a freewheeling power to fashion new forms of equitable remedies.” Instead, citing to Guaranty Trust Co v. York, 326 U.S. 99, 105 (1945) [PDF version], Justice Thomas explained that the Court has read general statutory grants of equitable authority to courts as being constrained by “the body of law which had been transplanted to this country from the English Court of Chancery.” In Boye v. Zacharie, 6 Pet. 648, 658, 8 L.Ed. 522 (1832) [link], Justice Joseph Story wrote in interpreting these statutes that, under the Court’s “settled doctrine,” “the remedies in equity are to be administered … according to the practice of courts of equity in [England].” Writing for the Court in Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) [PDF version], Justice Antonin Scalia quoted from Atlas Life Ins. Co. v. W.I. Southern Inc., 306 U.S. 563, 568 (1939) [PDF version], in explaining that statutes giving equitable authority to federal courts give courts “an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.”

Citing again to his concurring opinion in Jenkins, Justice Thomas asserted that the same limitations on equitable authority of federal courts that existed at the founding apply to the inherent constitutional authority of courts to grant such equitable relief, provided that such authority exists at all.

Justice Thomas explained that the authority of courts to grant equitable relief under Article III of the Constitution “was a point of construction at the founding…” In Jenkins, Justice Thomas wrote that the founders viewed equity “with suspicion,” and that a “more limited construction” of the power prevailed. Jenkins, at 126, 128 (1995). He explained that many of the anti-federalists expressed concerns about the extension of the judicial power to “Case[s] in … Equity.” In Essays of Brutus No. XI (Jan. 31, 1788), the pseudonymous anti-federalist wrote that this provision would allow courts to “explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.” Justice Thomas noted that the federalists responded by “emphasizing the limited nature of equity.” For example, Alexander Hamilton wrote in the Federalist No. 78 that courts would be “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” In Federalist No. 83, Hamilton stated that, while the purpose of equity was “to give relief in extraordinary cases, which are exceptions to general rules,” “the principles by which that relief is governed are now reduced to a regular system.” Justice Thomas explained that the Federalists’ explanation of how equity would work “was consistent with how equity worked in 18th-century England.” He cited to William Blackstone’s Commentaries on the Laws of England, which detailed that “’the system of relief administered by a court of equity’ has been reduced ‘into a regular science.’”

From this discussion, Justice Thomas summarized by stating that “whether the authority comes from a statute or the Constitution, district courts’ authority to provide equitable relief is meaningfully constrained. This authority must comply with longstanding principles of equity that predate this country’s founding.”

Part II: Justice Thomas Opines that Universal Injunctions Appear to Exceed Judiciary’s Equitable Authority

Justice Thomas began the final part of his concurring opinion by stating that universal injunctions “do not seem to comply” with longstanding principles of equity dating back to English practices prior to the founding.

Citing to numerous sources on English law, Justice Thomas explained that “[e]quity originated in England as a means for the Crown to dispense justice by exercising its sovereign authority.” In Jenkins, at 127, Justice Thomas wrote that equity existed to allow the sovereign to grant discretionary relief to parties that would not be available under the “rigors of the common law.” He added that the English system did not contemplate universal injunctions because the Chancellor, who acted as an agent of the Crown, could not enjoin the Crown. Blackstone wrote that the Chancellor could not grant “any relief against the King, or direct any act to be done by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trustee.”

Returning stateside, Justice Thomas explained that, “as a general rule, American courts of equity did not provide relief beyond the parties to the case.” That is, “[i]f their injunctions advantaged nonparties, that benefit was merely incidental.” Justice Thomas provided the example of an injunction being granted to provide relief to a plaintiff in the form of barring a public nuisance. While this injunction may benefit third parties in that it bars a public nuisance that would bother them as well as the plaintiff, that benefit would have been considered incidental to the court of equity’s purpose, which was to provide relief to the party before it. Quoting from a December 2017 Harvard Law Review Article by Samuel L. Bray (131 Harv. L. Rev. 417, 426-27), Justice Thomas wrote that the “general rule” was that “all persons materially interested … in the subject-matter of a suit, are to be made parties to it…”

In a recent concurring opinion in Murphy v. National Collegiate Athletic Assn., 138 S.Ct 1461, 1485 (THOMAS, J., concurring) [PDF version], Justice Thomas wrote that American courts have generally understood the judicial power as “fundamentall[y] the power to render judgments in individual cases.” Referring again to his discussion in Murphy, Justice Thomas stated that courts “did not believe that [they] could make federal policy, and they did not view judicial review in terms of ‘striking down’ laws or regulations.” In his concurring opinion in Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1544-46 (2016) (THOMAS, J., concurring) [PDF version], Justice Thomas asserted that courts have held generally that a plaintiff cannot bring suit vindicating public rights without showing a particular injury to him or herself.

Justice Thomas explained that the Supreme Court “has long respected these traditional limits on equity and power.” In Scott v. Donald, 165 U.S. 107, 115 (1897) [PDF version], the Court rejected “an injunction based on the theory that the plaintiff ‘so represents [a] class’ whose rights were infringed by a statute as ‘too conjectural to furnish a safe basis upon which a court of equity ought to grant an injunction.’” In Massachusetts v. Mellon, 262 U.S. 447, 487 (1923) [PDF version], the Court rejected an injunction against an appropriation statute, noting that the dispute “is essentially a matter of public and not of individual concern.” It added that as a general issue there was “no basis … for an appeal to the preventative powers of a court of equity” to enjoin implementation of an illegal law. The Court in Massachusetts v. Mellon added that where a statute is found to be unconstitutional, a court may enjoin “not the execution of the statute, but the acts of the official.” Id. at 488. However, it held that a court may not issue an injunction based on the allegation “that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional.”

Justice Thomas explained that the first district court to issue a universal injunction was the United States District Court for the District of Columbia in Wirtz v. Baldor Elec. Co., 337 F.3d 518 (D.D.C 1963) [PDF version]. He stated that universal injunctions were rare in the decades after Writz, “[b]ut recently, have exploded in popularity.”

Regarding the sudden surge of universal injunctions, Justice Thomas found that “[n]o persuasive defense has yet been offered for the practice.” Citing to several law review articles, Justice Thomas explained that defenders of universal injunctions simply assert that they ensure “that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful took to check the Executive Branch.” However, Justice Thomas contended that such arguments were unavailing because they “do not explain how these injunctions are consistent with the historical limits on equity and judicial power.” Justice Thomas suggested that the arguments were more akin to a policy argument about how the powers ought to be separated between the branches rather than an analysis of how the framers actually chose to separate the powers.

Justice Thomas concluded that “universal injunctions are legally and historically dubious.” He added that if federal courts continue to issue them, the Supreme Court “is dutybound to adjudicate their authority to do so.”

Conclusion

It is important to reiterate that the concurring opinions to not constitute the opinion of the Court, and they are not binding on lower courts. However, Justice Thomas’s concurring opinion on universal injunctions addresses an issue that will likely come before the Court, and possibly in the context of immigration matters, in the near future. Over the past several years, numerous nationwide injunctions have been issued in the immigration context. In two prominent examples outside of the “travel ban” litigation, there was a District Court injunction against the implementation of the Deferred Action for Parents of Americans (DAPA) program in 2015 [see opinion blog] and there are now currently standing universal injunctions against the rescission of the Deferred Action for Childhood Arrivals (DACA) [see article] program. Although it is unclear how or when the Court will consider the scope of the authority of district courts to issue universal injunctions, it will be an issue worth watching in future cases.