Labor & Employment Law Daily Trump’s third ‘travel ban’ supported by ‘ample’ authority under INA
Thursday, June 28, 2018

Trump’s third ‘travel ban’ supported by ‘ample’ authority under INA

By Pamela Wolf, J.D.

The Trump Administration scored a great victory on June 26, when the U.S. Supreme Court ruled 5-4 that the President lawfully exercised the broad discretion granted to him under the Immigration and Nationality Act (INA), 8 U.S.C. §1182(f), when he suspended the entry of aliens into the United States under the third version of his controversial series of “travel bans,” reversing the nationwide preliminary injunction affirmed by the Ninth Circuit. Justices Kennedy and Thomas filed concurring opinions. Justice Breyer filed a dissent in which Justice Kagan joined. Justice Sotomayor also filed a dissent in which Justice Ginsburg joined (Trump v. Hawaii, June 26, 2018, Roberts, J.).

Version three. President Trump’s third iteration of the “travel ban,” Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats,” suspended and limited indefinitely the entry into the United States of foreign nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. (It effectively removed Sudan from the second travel ban and added Chad, North Korea, and Venezuela). On April 10, 2018, Chad was dropped from the travel ban because the country had raised its security standards to meet U.S. national security requirements.

Authority under the INA. The Court rejected claims by the plaintiffs (the State of Hawaii, three individuals, and Muslim Association of Hawaii) that the Proclamation was not a valid exercise of President Trump’s authority under the INA. “By its terms, §1182(f) exudes deference to the President in every clause,” wrote the Court. The INA 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).” As the Court has previously observed, 1182(f) vests the President with ‘”ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA.” The only prerequisite is that the President find the entry of the covered aliens “would be detrimental to the interests of the United States,” which the President “undoubtedly” had done here.

The President first ordered the Department of Homeland Security and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. Next, the President issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, the President determined that restricting entry of aliens who could not be vetted with adequate information was in the national interest.

The Court also rejected the plaintiffs’ attack on the sufficiency of the President’s findings, assuming such an inquiry were appropriate. Not only is the 12-page Proclamation more detailed than any prior order issued under §1182(f), such an inquiry “is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.”

The Court also found that Proclamation 9645 comported with other textual limits found in §1182(f). The Court agreed with the plaintiffs that the word “suspend” often connotes a temporary deferral. The President, however, is not required to prescribe in advance a fixed end date for the entry restriction. Section 1182(f) authorizes the President to suspend entry “for such period as he shall deem necessary.” Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations.

Establishment Clause. The Court in addition ruled that the plaintiffs had not demonstrated the likelihood of success on the merits of their claim that Proclamation 9645 violates the Establishment Clause; an issue not reached by the Ninth Circuit, but rather added by the Court when it granted certiorari. The plaintiffs asserted that the primary purpose of the Proclamation was religious animus; Trump’s stated concerns about vetting protocols and national security were merely pretexts for discriminating against Muslims. At the heart of the plaintiffs’ case was a series of statements made by President and his advisers both during the campaign and since Trump took office. The issue, however, was not whether to denounce Trump’s statements, but the significance of those statements in reviewing his Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In so doing, the Court must consider not just the statements of a particular President, but also the authority of the Presidency itself.

Judicial review. The Court observed that for more than a century, it 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.” Decisions in these matters may implicate “relations with foreign powers,” or involve “classifications defined in the light of changing political and economic circumstances,” and thus such judgments “are frequently of a character more appropriate to either the Legislature or the Executive. Even so, although foreign nationals seeking admission have no constitutional right to entry, the Court has in engaged in a “circumscribed judicial inquiry,” for example, when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen. The upshot of the Court’s 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.”

Limiting its review as to whether the Executive gave a “facially legitimate and bona fide” reason for its action, the Court assumed that it may look behind the face of the Proclamation to the extent of applying rational basis review, i.e., whether policy is plausibly related to the federal government’s stated objective to protect the country and improve vetting processes. While the plaintiff’s extrinsic evidence could be considered, the policy would be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.

Where, on the few occasions, the Court has struck down a policy as illegitimate under rational basis scrutiny, there has been a common thread that the laws at issue were ‘”divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests’ and ‘its sheer breadth [was] so discontinuous with the reasons offered for it’ that the initiative seemed ‘inexplicable by anything but animus.’” Proclamation 9645 does not fit that pattern.

Legitimate purposes. The Proclamation is expressly premised on legitimate purposes and says nothing about religion. While the plaintiffs and the dissent stress that five of the seven nations currently included in the Proclamation have Muslim-majority populations, that fact alone does not support an inference of religious hostility, given that the policy covers just 8 percent 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.

Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.

Three additional features of the policy support the federal government’s claim of a legitimate national security interest. First, since the President first introduced entry restrictions in January 2017, three Muslim-majority countries, Iraq, Sudan, and Chad, have been removed from the list. Second, as to those countries still subject to entry restrictions, the Proclamation includes multiple exceptions for various categories of foreign nationals. Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, there is sufficient national security justification to survive rational basis review.

Japanese relocation ruling. Along the way, the Court also took an axe to its 1944 ruling in Korematsu v. United States, raised by Justice Sotomayor in her dissent. “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case,” the Court wrote. “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.” It was wholly “inapt,” however, “to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” President Trump’s suspension of entry is an act well within executive authority that could have been taken by any other President. The dissent’s reference to Korematsu, however, gave the Court an opportunity “to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”

Editor’s note: Some legal observers have already raised questions about the Court’s ability, at least traditionally, to overrule an earlier opinion that “has nothing to do with this case.”

Judicial review and religious animus. In his concurring opinion, Justice Kennedy stressed that the Court acknowledged that in some instances, governmental action may be subject to judicial review to determine whether it is “inexplicable by anything but animus.” Whether judicial proceedings may continue in this case, given the substantial deference “that is and must be accorded to the Executive in the conduct of foreign affairs,” and in light the decision, must be addressed in the first instance on remand.

The Justice also made reference to need for government officials to adhere to constitutional guarantees even when judicial review may not be available. He noted that the First Amendment prohibits the establishment of religion and promises the free exercise of religion, from which safeguards, it follows there is freedom of belief and expression. “It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs,” Justice Kennedy wrote. “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

Proclamation not applied as written. Recounting ways in which the Proclamation may be seen as a “Muslim ban,” rather than a “security-based ban,” Justice Breyer’s dissent, in which Justice Kagan joined, pointed to evidence that the federal government is not applying the Proclamation as written. The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver, yet Breyer said that to his knowledge, no guidance has issued.

Moreover, the State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants. While the government claims that the number increased to 430 during the first four months of implementation, 430, when compared with the number of pre-Proclamation visitors, “accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats,” according to Justice Breyer.

In addition, the Proclamation does not apply to asylum seekers or refugees, yet few refugees have been admitted since the Proclamation took effect. Although more than 15,000 Syrian refugees arrived in the U.S. in 2016, only 13 have arrived since January 2018. “Similarly few refugees have been admitted since January from Iran (3), Libya (1), Yemen (0), and Somalia (122),” Justice Breyer pointed out.

The Justice’s last words: “Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”

Exactly as advertised. Justice Sotomayor minced no words in her dissent, in which Justice Kagan joined. “The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment,” she wrote. “The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a facade of national-security concerns.”

The repackaging of Proclamation No. 9645 did little to cleanse it of the appearance of discrimination created by President Trump’s words, Justice Sotomayor asserted. “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.”

Justice Sotomayor had strong words for the majority, saying they held otherwise “by 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.”

Replacing one wrong with another. As to the Court’s treatment of the Korematsu case, while Justice Sotomayor called the “formal repudiation” of the “shameful precedent” “laudable and long overdue,” she also said it does not make the majority’s decision acceptable or right. “By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another,” the Justice wrote.

Reactions. The reactions to the ruling came quickly. Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said: “This ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action.”

New York Attorney General Barbara D. Underwood echoed that sentiment, saying, “President Trump’s travel bans are a stain on American history that were rooted in deep anti-Muslim animus and unleashed chaos on families, businesses, institutions, and communities throughout New York. Despite today’s ruling, New York will continue to serve as a beacon to the world, welcoming people of all faiths, races, nationalities, and backgrounds.”

But President Trump called the ruling “a tremendous victory for the American People and the Constitution,” which “upheld the clear authority of the President to defend the national security of the United States.” “In this era of worldwide terrorism and extremist movements bent on harming innocent civilians, we must properly vet those coming into our country,” Trump said. He added that the Supreme Court’s ruling is also “a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country.”

“President Trump was right to hit pause on admitting foreign nationals and refugees from countries where adequate security screening cannot occur, and the Supreme Court made the right decision to uphold the Trump Administration’s constitutional and legal executive order,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said in a statement. “While I have long been opposed to the abuse of executive power, especially with regard to our nation’s immigration laws, President Trump clearly has the authority under the law and the Constitution to limit immigration when it is in our nation’s national security interest to do so. I’m pleased the Supreme Court has cut through the hyperbolic rhetoric surrounding this executive order and has upheld it.”

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