Trump v. Hawaii, 199 L.Ed.2d 620 (U.S. 2018)

The AAUP joined with the American Council on Education and other higher education groups in submitting an amicus brief on March 28, 2018, to the US Supreme Court opposing the Trump administration’s recent proclamation instituting a travel ban. The current iteration of the travel ban, introduced on September 24, 2017, places restrictions on entry to the United States from Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and Venezuela. The amicus brief argues that the new travel ban “jeopardizes the many contributions that foreign students, scholars, and researchers make to American colleges and universities, as well as our nation’s economy and general well-being.” The Supreme Court will hear oral argument on April 25, 2018, with a decision expected to be released in late June.

The case arose when, on September 24, 2017, the Trump administration issued a new (third) travel ban after the first two Executive Orders were dismissed as moot. The third ban, Presidential Proclamation 9645 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats), places entry restrictions on individuals traveling to the United States from eight countries. The state of Hawaii and others challenged the September 24 order, arguing that it violated both federal law and the US Constitution. Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017). On October 18 and 20, 2017, two federal district court judges, in Hawaii and Maryland, issued nationwide preliminary injunctions against enforcement of the new travel ban issued on September 24, 2017. The preliminary injunction applies only to the six Muslim-majority countries named in the travel ban, but not to North Korea and Venezuela, which are also covered by the travel ban.

The Trump administration appealed the decision to the Supreme Court. The Trump administration argues that by preventing the President from implementing the travel ban, the courts have restricted the President’s ability to protect the nation, pointing to the possibility of inadequate information-sharing and deficient risk assessments from foreign nations.

The Supreme Court will consider four questions raised in Trump v. Hawaii, 199 L.Ed.2d 620 (U.S. 2018): Can the courts even review this challenge? Has the President overstepped his authority over immigration in issuing the September 24 order? Was the lower court’s ruling overbroad; and Does the September 24 order violate the Establishment Clause?

AAUP joined thirty-two other higher education organizations in filing the amicus brief. 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 argues 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 proclamation, 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 concludes “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. As explained above, 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.”