By a vote of 5-4, the Supreme Court handed President Trump a tremendous victory by rejecting a challenge to the President’s travel ban” or “Muslim ban” in Trump v. Hawaii. The ban, based on Presidential Proclamation 9645, restricts immigration to the United States by citizens of eight countries, most (but not all) of which are predominantly Muslim. Led by Chief Justice John Roberts, the majority gave wide deference to the President on national security grounds. Though the decision appears to be a complete victory for the President, signs of future challenges could be found in Justice Anthony Kennedy’s concurrence and Justice Breyer’s dissent.
THE THREE TRAVEL BANS: A HISTORY
Presidential Proclamation 9645 was actually the third iteration of the President’s initial travel ban. Issued on January 27, 2017, the first ban, Executive Order 13769 (EO 13769), imposed a 90-day ban on entry into the United States of citizens from seven overwhelmingly Muslim countries – Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen, regardless of their visa status and suspended the United States Refugee Admissions Program (USRAP) for 120 days. Several lawsuits were immediately filed and the United States Courts of Appeals for the Ninth Circuit placed a restraining order on EO 13769. In response, the Trump Administration replaced the initial ban with another iteration, Executive Order 13780 (EO 13780).
The second ban also imposed a 90-day ban on the entry of citizens from six of the seven Muslim-majority countries included in the first order (removing Iraq from the list), but exempted visa and green card-holders. In June 2017, the Ninth Circuit again targeted the ban and issued an injunction against implementation. The Supreme Court though intervened and lifted that injunction. The March 2017 ban then expired and the President issued the third iteration of the ban, Presidential Proclamation 9645, on September 2017. That iteration subtracted Sudan while adding Chad, North Korea, and governmental officials from Venezuela. Lower courts struck down this ban as well, but the Supreme Court allowed the third ban to be implemented while waiting to hear the challenges.
THE HOLDING OF TRUMP v. HAWAII
Hawaii and the rest of the plaintiffs essentially argued that the President exceeded his authority under two federal immigration laws and the Establishment Clause of the U.S. Constitution. In his opinion for the majority though, Chief Justice Roberts rejected Hawaii’s argument that the September 2017 order exceeds the president’s authority under federal immigration laws. Section 1182(f) of the Immigration and Nationality Act (INA), “exudes deference” to the president, giving him “broad discretion to suspend” the entry of noncitizens into the United States. If the President determines that allowing noncitizens entry “would be detrimental to the interests of the United States”, then that is his right. Chief Justice Roberts also credited President Trump’s “worldwide, multi-agency review” process as evidence of the legitimacy of his authority.
Speaking for the majority, Chief Justice Roberts also rejected the Plaintiff’s argument that the third ban violated another provision of federal immigration law, Section 1152(a)(1)(A), which bars discrimination based on nationality in issuing visas. This provision though, Roberts contends, does not limit the President’s authority to block entry of nationals of some countries. Indeed, according to Roberts, both Presidents Reagan and Carter suspended immigration based on nationality. To hold Section 1152(a)(1)(A) limits a President’s authority would also limit his or her ability to respond in cases of a national epidemic or “a verified terrorist threat involving nationals of a specific foreign nation” according to the Chief Justice.
Finally, the majority rejected the argument that the ban violated the Establishment Clause which prohibits favoring one religion over another. Hawaii and the Plaintiffs pointed to the President’s tweets and statements by his advisors which they said were evidence that the President had intended the travel ban to be targeted against Muslims. Chief Justice Roberts stated that normally courts do not even look beyond whether the laws are neutral on their face, but even if they did look deeper, the ban still survives because it is directly based on the legitimate purpose of “preventing entry of nationals who cannot be adequately vetted.”
Chief Justice Roberts admits that President Trump’s sentiments compare unfavorably with George Washington, Dwight Eisenhower, and George W. Bush who “espouse[d] the principles of religious freedom and tolerance on which this nation was founded”. But Chief Justice Roberts reasoned, the Supreme Court's job is “not whether to denounce the statements", it is to consider “the authority of the presidency itself”. Under a “rational-basis review”, those statements do not matter and ultimately, according to Chief Justice Roberts, courts cannot substitute their own judgment for that of the executive branch on matters related to national security. To further demonstrate the legitimacy of the ban, Roberts pointed out that three Muslim countries were dropped from the ban over time and that exemptions and waivers apply to the ban that adequately protect legitimate travelers.
THE NEXT CHALLENGERS: The Waiver and Exemption Process
The practical effects of the Court’s decision are basically nil. The ban has been in effect for several months now and the State Department has already adjusted to it. While it appears, on its face, that the Chief Justice’s ruling foreclose all real opportunities for challenging the travel ban in the future, the dissenting opinion filed by Justice Stephen Breyer and the concurrence in support of the majority opinion filed by Justice Anthony Kennedy gives room for future challenges. Justice Kennedy, in his concurrence with the majority, pointed out that a President’s authority is not unlimited and seemingly called for greater scrutiny after this ruling to guard against discriminatory animus.
Justice Breyer’s dissenting opinion, which was joined by Justice Elena Kagan, focused on the exemption and waiver programs on which the majority partly relied to uphold the order. If the government is applying those programs as they are detailed, then the ban is likely legitimate according to Justice Breyer. However, Justice Breyer noted that only a small amount of waivers appear to have been granted and cited evidence from current and former consular officers (NOTE: Justice Breyer cites me in his dissent) who questioned whether the waiver was just window dressing. These two opinions together, give room for pending challenges. Already in Alharbi v. Miller, a current court case in the Eastern District of New York, several plaintiffs are challenging the veracity of the waiver program. According to news reports, only about 2% of waivers are actually granted. Unless the State Department increases the number of waivers granted and the transparency of the waiver process, they will likely be a basis for future challenges.
One criticism of the plaintiffs in Trump v. Hawaii, was that they appeared to seek “quick wins” in the Ninth Circuit instead of going through a rigorous discovery process. Future plaintiffs will not make that same mistake when it comes to the waiver and exemption process. Though the government will attempt to hide behind national security and doctrines such as consular non-reviewability, this will not keep all documents away from plaintiffs’ attorneys. When those plaintiffs’ attorneys gain those documents, they may well find the evidence needed to lead a new assault on the travel ban but from a different direction. Though the majority of the Court hoped they put an end to the challenges to the travel ban, Breyer’s dissent and Kennedy’s concurrence may well guarantee that the battle will go on.
