By: James Pittman
The Supreme Court, in "Trump v. Hawaii"
, held that the President was within his authority to limit travel to the United States by citizens of five countries which the President believed posed a threat to the safety and security of the USA.
Executive Order #1 (“EO–1”)
Soon after taking office in 2017, President Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (2017). EO–1 directed the Secretary of Homeland Security to conduct a review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. §3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—that had been previously identified by Congress or prior administrations as posing heightened terrorism risks. §3(c). The District Court for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government’s request to stay that order. Washington v. Trump, 847 F. 3d 1151 (2017) (per curiam).
Executive Order #2 (“EO–2”)
In response to the stay paced on EO-1, the President revoked that order, replacing it with Executive Order No. 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, EO–2 also temporarily restricted the entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO–1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a). The order explained that 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.” §1(d). The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review.
EO-2 was immediately challenged in court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and the respective Courts of Appeals upheld those injunctions, albeit on different grounds.
SCOTUS granted certiorari and stayed the injunctions—allowing the entry suspension to go into effect—with respect to foreign nationals who lacked a “credible claim of a bona fide relationship” with a person or entity in the United States.
Proclamation No. 9645
After completion of the worldwide review mandated in EO-1, the President issued Proclamation No. 9645
, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. 82 Fed. Reg. 45161. The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” §1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. The countries so restricted are Chad, Iran, LIbya, North Korea, Syria, Venezuela, Yemen, and Somalia.
Specifically, with regard to Iran, North Korea, and Syria, because their governments do not adequately share security information, the Proclamation suspends entry of all nationals, except for Iranians seeking nonimmigrant student and exchange-visitor visas.
For Chad, Libya, and Yemen, it restricts entry of nationals seeking immigrant visas and nonimmigrant business or tourist visas for the reason because these countries show information-sharing deficiencies but are nonetheless “valuable counterterrorism partners”.
Somalia was found to generally satisfy the baseline standards but was found to present special risk factors, so the Proclamation suspends entry of nationals seeking immigrant visas and requires additional scrutiny of nationals seeking nonimmigrant visas.
And for Venezuela, which refuses to cooperate in information sharing but for which alternative means are available to identify its nationals, the Proclamation limits entry only of certain government officials and their family members on nonimmigrant business or tourist visas.
The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum.
It also provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. See also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations).
The Proclamation further directs DHS to assess on a continuing basis whether entry restrictions should be modified or continued, and to report to the President every 180 days. Upon completion of the first such review period, the President, on the recommendation of the Secretary of Homeland Security, determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Presidential Proclamation No. 9723
, 83 Fed. Reg. 15937 (2018).
Plaintiffs in this case are the State of Hawaii, three individuals (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii. The State operates the University of Hawaii system, which recruits students and faculty from the designated countries. The three individual plaintiffs are U. S. citizens or lawful permanent residents who have relatives from Iran, Syria, and Yemen applying for immigrant or nonimmigrant visas. The Association is a nonprofit organization that operates a mosque in Hawaii.
Plaintiffs challenged the Proclamation—except as applied to North Korea and Venezuela
They argued that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA). Plaintiffs further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward Islam.
District Court Ruling on the Proclamation
The District Court granted a nationwide preliminary injunction barring enforcement of the entry restrictions. The court concluded that the Proclamation violated two provisions of the INA: §1182(f ), because the President did not make sufficient findings that the entry of the covered foreign nationals would be detrimental to the national interest, and §1152(a)(1)(A), because the policy discriminates against immigrant visa applicants on the basis of nationality. 265 F. Supp. 3d 1140, 1155–1159 (Haw. 2017).
8 USC 1182(f) 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…
8 USC §1152(a)(1)(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, 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 Government requested expedited briefing and sought a stay pending appeal. The Court of Appeals for the Ninth Circuit granted a partial stay, permitting enforcement of the Proclamation with respect to foreign nationals who lack a bona fide relationship with the United States. SCOTUS then stayed the injunction in full pending disposition of the Government’s appeal.
Ninth Circuit Ruling on the Proclamation
Deciding the case on its merits, the Ninth Circuit affirmed the District Court, holding that:
1) the Proclamation exceeds the President’s authority under §1182(f ). In its view, that provision authorizes only a “temporary” suspension of entry in response to “exigencies” that “Congress would be ill-equipped to address.” 878 F. 3d 662, 684, 688 (2017). The court further reasoned that the Proclamation “conflicts with the INA’s finely reticulated regulatory scheme” by addressing “matters of immigration already passed upon by Congress.” Id., at 685, 690; and
2) with regard to the claimed violation of §1152(a)(1)(A), the entry restrictions also contravene the prohibition on nationality-based discrimination in the issuance of immigrant visas.
The Ninth Circuit did not reach plaintiffs’ Establishment Clause claim.
US Supreme Court Decision Issued June 26, 2018
Roberts, J. wrote the majority opinion. The Court rejected Hawaii’s argument that the September 2017 order exceeds the president’s authority under Section 1182(f) which,the Court found, “exudes deference” to the president, giving him “broad discretion to suspend” the entry of noncitizens into the United States. The president can block noncitizens from coming into the United States if he determines that allowing them to enter “would be detrimental to the interests of the United States.” The September 2017 order was the result of a “worldwide, multi-agency review” that concluded that the entry restrictions in the order were necessary, for example, to prevent foreign nationals from coming to the United States from countries that did not share enough information about their citizens to allow U.S. immigration officials to vet them properly. The Court concluded that “the language of §1182(f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority.”
The Court also rejected Hawaii’s claim that the September 2017 order violates Section 1152(a)(1)(A), which bars discrimination based on nationality in issuing visas. Section 1182(f), Roberts observed, “defines the universe” of noncitizens who can get a visa to come to the United States; Section 1152(a)(1)(A) then prohibits discrimination based on nationality in granting or denying visas to those noncitizens. But Section 1152(a)(1)(A) does not limit the president’s ability to block the entry of nationals of some countries. Indeed, other presidents have done exactly that: President Reagan suspended the immigration of Cuban nationals to the United States, while President Carter issued an order denying visas to Iranian nationals. Hawaii’s argument would mean that both of those orders would violate the law. “Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war,” the Court pointed out, rejecting Hawaii’s contention
Similarly, rejected Hawaii’s argument that the September 2017 order violated the Constitution’s establishment clause, which claim the state had supported by pointing to statements and tweets by the president and his advisers that, in Hawaii’s view, made clear that the September 2017 order, like the others that preceded it, was intended to target Muslims. As examples, Hawaii cited Trump’s campaign statements calling for a “total and complete shutdown of Muslims entering the United States” and a reference by a campaign official, shortly after the inauguration, to a “Muslim ban.” The Court reasoned that they would normally only look at whether the order is neutral on its face – that is, whether it applies to all religions equally, nevertheless, even if they look beyond the text of the September 2017 order at other evidence of the president’s intent, the order still survives because it is directly based on a legitimate purpose: “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.”
The Court cited three specific features of the September 2017 order that support the government’s claim that the order was intended to serve genuine national-security interests: i) three Muslim-majority countries – Iraq, Sudan and Chad – are no longer covered by the restrictions; ii) the order contains exceptions that would allow some nationals from almost all of the countries covered by the order to come to the United States; and iii) . the order also contains a waiver provision that allows nationals from covered countries to travel to the United States in certain circumstances, such as to obtain urgent medical care. When all of these circumstances are considered together, the government has demonstrated “a sufficient national security justification” for the September 2017 order to survive. The district court’s injunction that temporarily blocked the government from enforcing the order was reversed, and the case will go back to the lower courts “for such further proceedings as may be appropriate.”
James Pittman is Co-founder of Docketwise and was previously engaged in the private practice of US Immigration Law. He also regularly teaches Continuing Legal Education (CLE) classes on immigration law topics and legal ethics. He is admitted to practice in New York and New Jersey and is a graduate of Northeastern University School of Law.