SCOTUS Upholds Travel Ban

By Andrew R. Arthur on June 27, 2018

The Supreme Court yesterday issued a decision in Trump v. Hawaii, reversing a Ninth Circuit decision enjoining portions of Presidential Proclamation 9645, the latest iteration of the so-called "travel ban". That decision strikes a significant blow for the authority of the Executive branch to protect the national security by suspending the entry of any aliens or class of aliens it finds would be detrimental to the interests of the United States.

I described that proclamation at length in an October 3, 2017, post, and explained the Ninth Circuit's decision in detail in a January 24, 2018, post. By way of background, however, on September 24, 2017, the president issued that proclamation. As the proclamation explained, based on a review undertaken pursuant to Executive Order 13,780, "Protecting the Nation from Foreign Terrorist Entry Into the United States" (EO-2), the Department of Homeland Security (DHS) along with the Department of State (DOS) and intelligence agencies:

[D]eveloped a baseline for the kinds of information required from foreign governments to support the United States Government's ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat.

That baseline consisted of three types of criteria: identity-management information; national security and public-safety information; and national security and public-safety risk assessment.

Identity-management information "focuses on the integrity of documents required for travel to the United States." National Security and public-safety information considers whether a foreign country provides information relating to the terrorist and criminal history of its nationals upon request and exemplars of its passports and national identity documents, as well as "whether the country impedes the United States Government's receipt of information about passengers and crew traveling to the United States." Finally, the national security and public-safety risk assessment examines, among other factors, "whether the country is a known or potential terrorist safe haven ... and whether it regularly fails to receive its nationals subject to final orders of removal from the United States."

After evaluating almost 200 countries against this baseline, DHS determined that 16 countries were "'inadequate' based on an analysis of their identity-management protocols, information-sharing practices, and risk factors," an additional 31 were "at risk" of being "inadequate" based on these criteria.

DOS then engaged in a 50-day process to encourage all countries, and especially the 47 that were deemed "inadequate" or "at risk" of being inadequate "to improve their performance with respect to the baseline." According to the proclamation:

Those engagements yielded significant improvements in many countries. Twenty-nine countries, for example, provided travel document exemplars for use by Department of Homeland Security officials to combat fraud. Eleven countries agreed to share information on known or suspected terrorists.

DHS subsequently determined that Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen continued to have "'inadequate' identity-management protocols, information-sharing practices, and risk factors." In addition, DHS found:

Somalia generally satisfies the information-sharing requirements of the baseline ... but its government's inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory, present special circumstances that warrant restrictions and limitations on the entry of its nationals into the United States. Somalia's identity-management deficiencies and the significant terrorist presence within its territory make it a source of particular risks to the national security and public safety of the United States.

Accordingly, the proclamation ordered restrictions and/or limits on entry by certain nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

On October 17, 2017, Judge Derrick Watson of the federal District Court of Hawaii, issued a temporary restraining order in that case below, enjoining DHS and DOS from implementing the proclamation against nationals of Chad, Iran, Syria, Yemen, and Somalia. As he stated: "Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court." I discussed that order at length in an October 19, 2017, post.

On October 20, 2017, Judge Watson converted his temporary restraining order into a preliminary injunction. On October 24, 2017, DOJ filed a motion for stay of that preliminary injunction with the Ninth Circuit. On November 13, 2017, the Ninth Circuit granted that motion in part, staying Judge Watson's preliminary injunction "except as to 'foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States'." On November 20, 2017, DOJ filed an Application for Stay Pending Appeal to the Ninth Circuit of that injunction with the Supreme Court.

On December 4, 2017, the Supreme Court issued a stay pending appeal to the Ninth Circuit of the district court's preliminary injunction in Hawaii. In that order, the Court stated: "In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch."

Thereafter, on December 22, 2017, the Ninth Circuit issued its decision in Hawaii. In that decision, the circuit court concluded that the plaintiffs were likely to succeed on their claims that the president in the proclamation had exceeded his statutory authority under section 212(f) of the Immigration and Nationality Act (INA) and had failed to satisfy that provision's requirement "that prior to suspending entry, the President must find that entry of the affected aliens would be detrimental to the interests of the United States."

Section 212(f) of the INA states, in 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 to be appropriate.

It also held that plaintiffs were likely to succeed on their claim that section 215(a)(1) of the INA does not provide the authority for the president's actions in the proclamation. That provision states:

(a) Unless otherwise ordered by the President, it shall be unlawful-

(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.

Finally, it found that the plaintiffs therein "had shown a likelihood of success on the merits of their claim that the Proclamation runs afoul of" what it deemed the "prohibition on the nationality-based discrimination" in section 202(a)(1)(A) of the INA. That section of the INA provides:

Per Country Level. -

(1) Nondiscrimination. -

(A) Except as specifically provided . . . no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.

The circuit court declined to consider the plaintiffs' claim that the proclamation "violates the Establishment Clause of the United States Constitution." Plaintiffs had urged the circuit court to adopt the view of the Fourth Circuit in its May 25, 2017, decision in International Refugee Assistance Project v. Trump (IRAP) "that 'the reasonable observer would likely conclude that EO-2's primary purpose [was] to exclude persons from the United States on the basis of their religious beliefs.'" The court held, rather: "Because we conclude that the district court did not abuse its discretion in granting the preliminary injunction relying on Plaintiffs' statutory claims, we need not and do not consider this alternate constitutional ground."

The circuit court, however, narrowed the scope of the district court's injunction to apply "only to those with a credible bona fide relationship with the United States," and stayed its decision "pending Supreme Court review" in accordance with the Court's December 4, 2017, order in Hawaii.

On January 6, 2018, DOJ petitioned the Supreme Court to grant certiorari in Hawaii. In a brief order dated January 19, 2018, the Court granted that petition.

As SCOTUSBLOG described the Court's certiorari order:

In granting the government's petition, the justices agreed to consider the three questions presented by the Trump administration: Whether courts can review a challenge to the September 24 order at all; whether the order falls within the president's authority over immigration; and whether the district court's order applies too broadly. They also agreed to take up a fourth question, broached by Hawaii: whether the September 24 order violates the Constitution's establishment clause, which (among other things) bars the government from favoring one religion over another.

In its June 26, 2018, decision, the Supreme Court began by noting that section 212(f) of the INA "exudes deference to the president in every clause." Specifically, it stated:

It entrusts to the President the decisions whether and when to suspend entry ("[w]henever [he] finds that the entry" of aliens "would be detrimental" to the national interest); whose entry to suspend ("all aliens or any class of aliens"); for how long ("for such period as he shall deem necessary"); and on what conditions ("any restrictions he may deem to be appropriate").

The court concluded that the proclamation "falls well within this comprehensive delegation." In particular, it concluded that the president had found that the entry of the covered aliens "would be detrimental to the interests the United States," first ordering DHS and other agencies to evaluate the compliance of every country with the baseline, and then issuing findings in the proclamation describing how the deficiencies in the practices of certain foreign governments deprive the United States government of "'sufficient information to assess the risks those countries' nationals posed to the United States.'"

As the Court noted:

Based on that review, the President found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information — both to protect national security and public safety, and to induce improvement by their home countries. The Proclamation therefore "craft[ed] ... country-specific restrictions that would be most likely to encourage cooperation given each country's distinct circumstances," while securing the Nation "until such time as improvements occur."

The Court rejected "plaintiffs' request for a searching inquiry into the persuasiveness of the President's justifications," holding that this would be "inconsistent with a broad statutory text [of section 212(f) of the INA] and the deference traditionally accorded the President in this sphere."

It concluded that the proclamation did not exceed the president's authority under section 212(f) of the INA.

The court also rejected plaintiffs' argument that that the suspension of entry in the proclamation violates section 202(a)(1)(A) of the INA. Specifically, they had argued that that this provision prohibits "nationality-based discrimination throughout the entire immigration process," despite the fact that section 202(a)(1)(A) of the INA refers only to visa issuance.

First, the Court noted that this provision relates only to "immigrant travel", whereas section 212(f) of the INA "allows the President to suspend entry of 'immigrants and nonimmigrants.'"

More significantly, however, the Court rejected this interpretation of section 202(a)(1)(A) of the INA "because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA." Critically, the court held:

Sections [212(f) of the INA] and [202(a)(1)(A) of the INA] ... operate in different spheres: Section [212 of the INA] defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once [section 212 of the INA] sets the boundaries of admissibility into the United States, [section 202(a)(1)(A) of the INA] prohibits discrimination in the allocation of immigrant visas based on nationality and other traits.

The court then turned to plaintiffs' claim that the proclamation "was issued for the unconstitutional purpose of excluding Muslims."

The court held that the individual plaintiffs had "standing to challenge the exclusion of their relatives under the Establishment Clause." It concluded, however, that the proclamation was "expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices."

The Court noted that the heart of the plaintiffs' argument on this point was "a series of statements by the President and his advisors casting doubt on the official objective of the proclamation." Significantly the Court held:

[T]he issue before us is not whether to denounce the statements. It is instead 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, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

The Court first noted the judiciary's traditional deference to the political branches as it relates to the exclusion of aliens:

For more than a century, this 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." ... Because decisions in these matters may implicate "relations with foreign powers," or involve "classifications defined in the light of changing political and economic circumstances," such judgments "are frequently of a character more appropriate to either the Legislature or the Executive."

Nonetheless, the Court admitted that it has also previously "engaged in a circumscribed judicial inquiry when the denial of the visa allegedly burdens the constitutional rights of a U.S. citizen." Referencing its decision in Kleindienst v. Mandel, a case brought by professors who wished to hear an excluded "revolutionary Marxist" speak at Stanford University and who challenged that decision under the First Amendment, the court noted that it had acknowledged those professors' "constitutional 'right to receive information' was implicated." It had limited its review, however, to whether a "facially legitimate and bona fide reason" was given by the Executive for its denial of admission to Mandel.

The Court continued, holding:

Mandel's narrow standard of review "has particular force" in admission and immigration cases that overlap with "the area of national security." ... For one, "[j]udicial inquiry into the national-security realm raises concerns for the separation of powers" by intruding on the President's constitutional responsibilities in the area of foreign affairs. ... For another, "when it comes to collecting evidence and drawing inferences" on questions of national security, "the lack of competence on the part of the courts is marked."

In summary, the Court stated:

The upshot of our cases in this context is clear: "Any 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," and our inquiry into matters of entry and national security is highly constrained.

For purposes of its review, the Court assumed that it could "look behind the face of the Proclamation to the extent of applying rational basis review." As it explained:

That standard of review considers whether the entry policy is plausibly related to the Government's stated objective to protect the country and improve vetting processes. ... As a result, we may consider plaintiffs' extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. [Emphasis added.]

The Court noted that policies were rarely struck down under rational basis scrutiny given this standard of review, and then only when "the laws at issue lack any purpose other than 'bare ... desire to harm a politically unpopular group.'" It concluded that:

[B]ecause there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.

Specifically, the Court held that the proclamation was premised on the legitimate purpose of preventing the "entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices," and said nothing about religion. Moreover, the Court noted, the proclamation "reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies."

Rejecting plaintiffs' emphasis that five of the seven countries that are currently included in the proclamation (Chad having been removed) have Muslim-majority populations, the Court asserted that this "fact alone does not support an inference of religious hostility," inasmuch as only 8 percent of the world's Muslim population was covered by the proclamation, and that the proclamation "is limited to countries that were previously designated by Congress or prior administrations as posing national security risks."

The court also rejected the argument that it should challenge the effectiveness and wisdom of the suspensions of entry under the proclamation, holding:

While we of course "do not defer to the Government's reading of the First Amendment," the Executive's evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving "sensitive and weighty interests of national security and foreign affairs."

Finally, the Court held that "[t]hree additional features of the entry policy support the Government's claim of a legitimate national security interest."

First, the fact that "since the president introduced entry restrictions in January 2017, three Muslim-majority countries — Iraq, Sudan, and Chad — have been removed from the list of covered countries," which it held reflected the fact that the restrictions in the proclamation are to remain in force "only so long as necessary to 'address' the identified 'inadequacies and risks.'"

Second, the proclamation provides "significant exceptions for various categories of foreign nationals" for the countries that remain subject to the entry restrictions, in particular permitting "nationals from nearly every covered country to travel to the United States on a variety of nonimmigrant visas." The Court found that this was a substantial point because "the majority of visas issued to nationals from the covered countries were nonimmigrant visas" over the last three fiscal years, that is, prior to the issuance of the proclamation.

Third, a waiver program that is available to all covered foreign nationals who are seeking entry as immigrants or nonimmigrants is provided for in the proclamation. The Court noted that "[o]n its face, this program is similar to the humanitarian exceptions set forth in President Carter's order during the Iran hostage crisis."

The Court concluded that: "[u]nder these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review," and that therefore the plaintiffs had not "demonstrated a likelihood of success on the merits the constitutional claim." Given this fact, the court reversed the preliminary injunction as an abuse of discretion, and remanded the matter.

This decision reflects the significant authority that Congress has given the Executive branch to restrict the entry of aliens detrimental to the interests of the United States. It has also established a high standard for plaintiffs to meet in challenging inadmissibility determinations on constitutional grounds. Most significantly, however, it has reemphasized the deference that the courts are to give to the Executive branch on matters related to the entry of aliens and national security.

Finally, the Court implicitly strikes a blow against the intemperance of certain court decisions as they relate to immigration policies of the Trump administration, a point that I alluded to in a May 2017 post On the Fourth Circuit's decision in IRAP. It concludes by stating:

Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. 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. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. [Emphasis added.]