Citation. 585 U.S. ___, 138 S.Ct. 2392, 201 L.Ed.2d 775 (2018).
Brief Fact Summary.
Hawaii and several other states and groups challenged Presidential Proclamation 9645 (the “Proclamation”) and two predecessor executive orders signed by President Donald Trump, which restricted travel into the U.S. by people from several nations.
Synopsis of Rule of Law.
A presidential proclamation placing entry restrictions on nationals from various foreign states is a valid exercise of presidential authority where the President finds that their entry is detrimental to the U.S.’s interests.
The Immigration and Nationality Act (INA) vests the President with authority to restrict the entry of aliens whenever he finds that their entry would be detrimental to the interests of the United States. President Trump concluded that it was necessary to impose entry restrictions on nationals of countries that present national security risks.
Shortly after taking office, President Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States (“EO-1”). EO-1 directed the Secretary of Homeland Security to conduct a worldwide review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the U.S. Pending that review, the order suspended for 90 days the entry of foreign nationals from 7 countries–Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen–that had been previously identified by Congress or prior administrations as posing heightened terrorism risks.
In response to the Ninth Circuit’s decision to affirm the district court’s injunction blocking the entry restrictions, the President revoked EO-1 and replaced it with EO-2, temporarily restricting the entry (with case-by-case waivers) of foreign nationals from 6 of the countries covered by EO-1. Those countries had been selected because each “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review.
These interim measures were immediately challenged in court. The temporary restrictions in EO-2 expired before the U.S. Supreme Court took any action and the lower court decisions were vacated.
On September 24, 2017, after completion of the worldwide review, the President issued Presidential Proclamation 9645 (the “Proclamation”), which sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” To further that purpose, the Proclamation placed entry restrictions on the nationals of 8 foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.
The Plaintiffs, citing a variety of statements by Trump and administration officials, argued that the proclamation and its predecessor orders were motivated by anti-Muslim animus.
Does the Proclamation violate the Establishment Clause of the First Amendment of the Constitution?
The Proclamation does not violate the Establishment Clause of the First Amendment of the Constitution.
Justice Sotomayor criticized the majority for “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.” Additionally, Justice Sotomayor wrote that the Court incorrectly chose to apply the rational basis standard of scrutiny, despite prior cases indicating a higher level of scrutiny was required in such cases. Nevertheless, even under the rational basis test, the Proclamation should fail because in the President’s own terms it was originally and continues to be “total and complete shutdown of Muslims entering the United States.”
Justice Kennedy emphasized in his concurring opinion that any subsequent proceedings must afford deference to the executive, as the majority opinion states, and also urged government officials to act and speak in accordance with the Constitution, even when their actions are not subject to judicial review.
Justice Thomas highlighted the fact that the President has inherent authority to exclude aliens from the country. Moreover, the Plaintiffs’ First Amendment religious discrimination case fails because the Proclamation was directed at aliens abroad.
On its face, the Proclamation does not favor or disfavor any particular religion but is, rather, facially neutral toward religion. The Proclamation is expressly remised on legitimate purposes preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices, and the text says nothing about religion. Further, the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.
Additionally, the fact that many majority-Muslim countries were not subject to restrictions and that some non-majority-Muslim countries were subject to the restrictions, supports the government’s contention that the Proclamation is not based on anti-Muslim animus and is instead based on “a sufficient national security justification.”