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Posted on Friday, July 20, 2018

The Supreme Court Rules on the Travel Ban

Trump v. Hawaii, ___ U.S. ___, No. 17-965 (26 June 2018)

More than 60 years ago, Congress enacted a law stating that if the President finds that the entry of designated aliens “would be detrimental to the interests of the United States,” then the President has the authority to restrict the entry of those aliens. 8 U.S.C. §1182(f).

In January 2017, President Trump issued an Executive Order temporarily suspending the entry of aliens from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) all of which were identified by Congress or previous administrations as posing heightened terrorism risk.  Each of these countries was either a state sponsor of terrorism, was significantly compromised by terrorist activities, or had active conflict zones.  A subsequent Executive Order deleted Iraq from the temporary ban.  The temporary ban was for 90 days pending the government’s worldwide review of its immigration security.

The plaintiffs sued in the district court in Hawaii, asserting that the President lacked the statutory authority to issue the ban and that the ban violated the First Amendment’s establishment of religion clause because it allegedly aimed at excluding Muslims.  The district court enjoined the temporary ban and the 9th Circuit upheld the injunction.  Later, the Supreme Court stayed the injunction and allowed the entry suspension to go into effect for aliens who lacked a credible claim of a bona fide relationship with a person or entity in the United States.[1]

On 24 September 2017, following the review of immigration security, the President issued a Proclamation pursuant to 8 U.S.C. §1182(f) restricting entry of aliens from eight foreign countries (Chad, Iran, Libya, Syria, Yemen, Somalia, Venezuela, and North Korea) whose systems for managing and sharing information about their nationals the President deemed inadequate.  (The President later lifted the restriction on Chad).  The President issued the Proclamation after the Department of Homeland Security (DHS) collected and reviewed information from foreign governments, after DHS conferred with the Department of State and U.S. intelligence agencies, and after consultation with his cabinet.  The range of restrictions on entry vary depending on the circumstances in each country and do not apply to permanent U.S. residents or persons granted asylum.  The Proclamation directs DHS to assess on a continuing basis whether the restrictions should be continued, modified or lifted.

The instant lawsuit before the Supreme Court was filed by three individuals, the State of Hawaii, and the Muslim Association of Hawaii.  The individuals are U.S. citizens or lawful permanent residents.  The University of Hawaii allegedly recruits faculty and students from five of the affected countries.  The Muslim Association operates a mosque in Hawaii.  The plaintiffs did not challenge the entry restrictions on persons from North Korea or Venezuela.

The Court said that 8 U.S.C. §1182(f), quoted in pertinent part above, grants the President broad authority to bar entry of foreign nationals.  The statute is clear on its face, and, based on his findings, the President lawfully exercised his authority under the plain language of the statute.  There was no need to resort to statutory background or legislative history.  The Court said that “[g]iven the clarity of the text, we need not consider such extra-textual evidence.” State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U.S. ___, ___ (2016)(slip op. at 9).  The broad language of §1182(f) gives the President the power to impose entry restrictions in addition to those specifically stated in the Immigration and Nationality Act (INA).  Sale. v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).

The plaintiffs’ statutory argument relied on 8 U.S.C. §1152(a)(1)(A), which states 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.”  The Court held that §1152(a)(1)(A) does not apply to the President’s Proclamation.  First, the section applies only to immigrant visas.  Second, this section does not apply to the entire immigration process but only to the issuance of visas.  There is a basic distinction between admissibility (entry) determinations and visa issuance that runs throughout the INA.  A visa is not a guarantee of entry. 8 U.S.C. §1201(h).  Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa).  Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits.

Turning to the plaintiffs’ First Amendment challenge that the Proclamation violates the establishment of religion clause, the Court held that the plaintiffs have standing to raise their claim.  The Court held that if an “American individual” has a bona fide relationship with a “particular person” in a foreign country, and if that particular person has been excluded from entering the country, then the American individual has incurred an injury-in-fact for purposes of Article III standing.  Presumably, the term “American individual” refers to U.S. citizens, legal residents, and corporations and entities located in the United States.  Such people and entities suffer concrete and particularized injury if a person with whom they have a bona fide relationship is denied entry.  The decision does not expressly define the meaning of bona fide relationship, except to say that a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis for Article III injury-in-fact.

On the merits, the Court rejected the plaintiffs’ establishment of religion claim.  The Proclamation is facially neutral toward religion, and that is a substantial hurdle for the plaintiffs to surmount.  For more than a century, the Court has recognized 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. Fiallo v. Bell, 430 U.S. 787, 792 (1977); Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952).  Nonetheless, although foreign nationals have no constitutional right to entry, the Court has engaged in circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972).  Judicial review is usually limited to whether the Executive gave a facially legitimate and bona fide reason for its actions. Id. at 769.

However, for reasons that are unclear from the opinion, the government suggested that it would be appropriate in this case for the inquiry to extend beyond the facial neutrality of the order.  For that purpose, the Court looked behind the face of the Proclamation to the extent of applying rational basis review.  Under that standard of review, if the Proclamation is plausibly related to the government’s stated objective to protect the country and improve vetting processes, then the policy has a rational basis and is constitutional.  See Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980).  If it is possible to discern a relationship to legitimate state interests, or if the policy is explicable by anything other than religious animus, then the Proclamation passes rational basis review and must be upheld.

The Court held that the Proclamation passes rational basis review.  The text says nothing about religion, and the fact that five of the seven nations currently covered by the Proclamation have Muslim-majority populations alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslims, and two of the countries covered by the policy are not Muslim-majority countries.  In addition, the five Muslim-majority countries still affected by the Proclamation were previously designated by Congress or prior administrations as posing security risks.

The case was before the Supreme Court for review of an injunction issued by the district court and upheld by the court of appeals.  The Supreme Court’s holding is that the plaintiffs have not demonstrated a substantial likelihood of success on the merits of their constitutional claims.  That holding does not preclude the plaintiffs from prevailing after full litigation, but it does make it difficult and unlikely.  The Court remanded the case to the lower courts for such further proceedings as may be appropriate.

This was a five-to-four decision.  Justice Thomas concurred and wrote a separate concurring opinion arguing that it is time to review whether nationwide injunctions issued by district courts are legal, a hint to future litigants.  Justice Breyer dissented and focused on whether the government has been implementing the Proclamation according to its terms, and, if not, that would show that the Proclamation is not bona fide.  Justice Breyer’s dissent could be construed as a suggestion to the plaintiffs on the conduct of future litigation on remand.  Justice Sotomayor dissented, joined by Justice Ginsburg.  Justice Sotomayor’s dissent ignores the text of the Proclamation and the stated reasons for the Proclamation, including the substantial presence of the enemy in the affected countries and the dysfunctional governments in those countries, and instead focuses on the President’s extraneous public statements, which she concludes are sufficient evidence that the Proclamation was motivated by religious animus.

[1] Several other lawsuits were filed in different district courts; some of those courts issued injunctions and some did not.  The Court’s decision in the instant case necessarily effects those other lawsuits.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.