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Trump v. Hawaii, 138 S. Ct. 2392 (2018)

On June 26, 2018 the Supreme Court of the United States by a 5-4 vote rejected a challenge to President Trump’s September 2017 Presidential Proclamation 9645 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats)—referred to as the “travel ban”—restricting immigration to the United States by citizens of eight countries, most of which are predominately Muslim. In an opinion by Chief Justice Roberts, the majority relied on the national security justifications for the ruling and held that the travel ban is fully consistent with Congress’s Immigration and Nationality Act as well as the Establishment Clause of the US Constitution. Justice Sonia Sotomayor, in dissent, lamented that the court had “blindly” endorsed “a discriminatory policy motivated by animosity toward Muslims.”

The case arose when, on September 24, 2017, the Trump administration issued a new (third) travel ban. The third travel ban places entry restrictions on individuals traveling to the United States from eight countries. (The two earlier bans, which had also been challenged, both expired by their own terms and the Supreme Court dismissed those challenges as moot. See Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 353, 199 L. Ed. 2d 203, (Oct. 10, 2017)(vacating judgment as moot); Trump v. Hawaii, 2017 U.S. LEXIS 6367, 199 L. Ed. 2d 275, (Oct. 24 2017)(vacating judgment as moot). The state of Hawaii and others challenged the third travel ban, arguing that it violated both federal law and the US Constitution. On October 18 and 20, 2017, two federal district court judges, in Hawaii and Maryland, issued nationwide preliminary injunctions against enforcement of the third travel ban. The Ninth Circuit Court of Appeals upheld the Hawaii injunction. Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017). The Trump administration petitioned for review by the Supreme Court which granted certiorari.

In March 2018, the AAUP joined with the American Council on Education and other higher education groups in submitting an amicus brief to the Supreme Court opposing this third travel ban. [The AAUP and other higher education groups also had filed an amicus brief opposing the earlier bans in Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 198 L. Ed. 2d 643 (June 26, 2017) (No. 16-1436)(granting cert. and granting stay in part), 138 S. Ct. 353, 199 L. Ed. 2d 203, (Oct. 10, 2017)(vacating judgment as moot)]. The brief explained that “amici share a strong interest in ensuring that people from around the world, including the eight countries identified in the challenged Presidential Proclamation, are not barred or deterred from entering the United States and contributing to American colleges and universities.” The amicus brief argued that “foreign students, faculty and researchers come to this country because our institutions are rightly perceived as the destinations of choice compared to all others around the globe.” The most recent travel ban, together with the first two travel ban executive orders, “altered those positive perceptions with the stroke of a pen.” Its “clarion message of exclusion” says that “America’s doors are no longer open to foreign students, scholars, lecturers, and researchers.” The brief concluded that

American colleges and universities “have a mission of ‘global engagement’ and rely on . . . visiting students, scholars, and faculty to advance their educational goals.” Washington v. Trump, 847 F.3d 1151, 1160 (9th Cir. 2017). That vital mission cannot be achieved if American immigration policy no longer sends a welcoming message to the members of the international community who wish to enter our campus gates. . . the Proclamation jeopardizes the many contributions that foreign students, scholars, and researchers make to American colleges and universities, as well as our nation’s economic and general well-being.

The court rejected the challenges to the travel ban. In his opinion for the majority, Chief Justice Roberts first rejected the argument that the travel ban exceeds the president’s authority under federal immigration law. Section 1182 (f) of the Immigration and Nationality Act, Roberts explained, “exudes deference” to the president, giving him “broad discretion to suspend” the entry of noncitizens into the United States. Under this provision, Roberts reasoned, 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.” And the president has done exactly that here, Roberts emphasized, because the travel ban was a result of a “worldwide, multi-agency review” that concluded that the entry restrictions in the travel ban 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 US immigration officials to vet them properly. In his decision Roberts declined to address the significant policy grounds against the ban, such as those advanced in the ACE/AAUP amicus brief. Rather, Roberts stated that the “inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.”  In short, Roberts concluded, “the language of Section 1182(f) is clear, and the Proclamation (travel ban) does not exceed any textual limit on the president’s authority.”  

The court also ruled that the travel ban is permitted by the Establishment Clause of the First Amendment to the US Constitution. Under the court’s precedents, Roberts suggested, the justices would normally only look at whether the travel ban is neutral on its face---that is, whether it applies to all religions equally. But even if they look beyond the text of the travel ban at other evidence of the president’s intent, Roberts continued, the travel ban still survives because “it is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Roberts dismissed the state’s contention that the travel ban applies too broadly and “does little to serve national security interests,” responding that courts should not substitute their own judgment for that of the executive branch on national-security matters, which he characterized as “delicate,” “complex,” and involving “large elements of prophecy.”

While the majority did not directly address the issues raised in the ACE/AAUP amicus brief, the brief was directly cited in dissents authored by Justices Breyer and Sotomayor. In response to the government’s argument regarding waivers granted by the state department, the dissent by Justice Breyer (joined by Justice Kagan) explained, “Amici have suggested that there are numerous appli­cants who could meet the waiver criteria. For instance, the Proclamation anticipates waivers for those with ‘significant business or professional obligations’ in the United States, §3(c)(iv)(C), and amici identify many scholars who would seem to qualify. Brief for Colleges and Universities as Amici Curiae 25–27; Brief for American Council on Education et al. as Amici Curiae 20 (identifying more than 2,100 scholars from covered countries); see also Brief for Massachusetts Technology Leadership Council, Inc., as Amicus Curiae 14–15 (identifying technology and business leaders from covered countries).” (Emphasis added.)

Similarly the dissent by Justice Sotomayor (joined by Justice Ginsburg) began by observing that ours is “a Nation built upon the promise of religious liberty,” with “the principle of religious neutrality” embedded in the First Amendment.” Sotomayor lamented that the majority’s decision “fails to safeguard that fundamental principle” by “leav[ing] undisturbed” a discriminatory policy that “now masquerades behind a façade of national-security concerns.”  Near the end of her lengthy dissent ACE/AAUP’s amicus brief was cited in support of the conclusion that “plaintiffs and their amici have convincingly established that ‘an injunction is in the public interest.’ Winter, 555 U. S., at 20. As explained by the scores of amici who have filed briefs in support of plaintiffs, the Proclamation has deleterious effects on our higher education system;8 national security;9 healthcare;10 artistic culture;11 and the nation’s technology industry and overall economy.12 Accordingly, the Court of Appeals correctly affirmed, in part, the District Court’s preliminary injunction.13  [8See Brief for American Council on Education et al. as Amici Curiae; Brief for Colleges and Universities as Amici Curiae; Brief for New York University as Amicus Curiae.]” (emphasis added, footnotes omitted.)