The Trump administration got a big win Tuesday when, by a 5-4 vote, the Supreme Court issued a decision in Trump v. Hawaii upholding the so-called travel ban.
Under the ban, President Donald Trump has suspended, at least temporarily, the admission of individuals from seven countries—Syria, Iran, Libya, Yemen, Somalia, North Korea, and Venezuela—subject to case-by-case waivers.
The travel ban was challenged by the state of Hawaii, three individuals, and the Muslim Association of Hawaii, who argued that Trump exceeded his authority under the Immigration and Nationality Act. They also claimed his proclamation of the travel ban violated the Establishment Clause of the First Amendment because it was motivated by anti-Muslim bias, not by national security concerns.
The president’s proclamation explained the rigorous process the administration went through in determining which countries to include on the list. It describes how the secretary of the Department of Homeland Security created a baseline of criteria for countries to meet and measured nearly 200 countries against that baseline.
At the end of this process, the administration found 16 countries to be deficient and 31 other countries “at risk.” This began a period of engagement with each of those governments to address deficiencies, after which the administration compiled its final list.
The president’s proclamation also explained the reasons why the remaining countries were still on the list. They share some combination of these characteristics: Some are state sponsors of terrorism, some are safe havens for terrorists, some refuse to cooperate with us, and some lack the institutional capacity to cooperate effectively with us.
The proclamation was neutral on its face regarding religion and applied to people of all faiths. And although five of the seven designated countries are majority-Muslim countries (out of 49 such countries around the world), the president stated that these countries were included for national security reasons: Either they are safe havens for terrorists or they are unwilling or unable “to share or validate important information about individuals” needed to “vet” visa applicants properly.
This should hardly have been a surprise. Congress and the Department of Homeland Security had excluded all five of these countries from participating in the Visa Waiver Program in 2015 and 2016—long before Trump was elected or took the oath of office.
Nonetheless, Trump’s proclamation set forth details on the heightened risk that terrorists might exploit weaknesses in those countries to enter the United States successfully.
Chief Justice John Roberts, who wrote the majority opinion joined by Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Anthony Kennedy, began by noting that “[u]nder the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission.”
Section 1182(f) of the law, Roberts wrote, vests considerable authority in the president to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.”
In this case, Roberts noted, the president “lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.”
In rejecting the plaintiffs’ argument that the president’s findings were insufficient to survive judicial review, Roberts stated that the proposition that such findings should be subject to judicial review in the first place was “questionable,” because they pertain to national security, an area in which courts traditionally accord a great deal of deference to presidents.
Regardless, the majority held that the findings set forth in the president’s proclamation were more than sufficient; indeed, Roberts stated, it was “more detailed than any prior order” issued by a president under the law.
The plaintiffs based their Establishment Clause challenge on several statements made by Trump and some of his advisers, mostly during the presidential campaign but a few after he was inaugurated. The plaintiffs contended these statements were anti-Muslim and showed the true purpose behind the travel ban.
According to Roberts, the plaintiffs:
argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.
Roberts continued that the Supreme Court has long recognized in a series of cases 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.”
And that when the president exercises his discretion “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the asserted constitutional interests of U. S. citizens.”
Roberts further noted that this deferential standard of review “has particular force in admission and immigration cases that overlap with the area of national security.”
While the chief justice acknowledged there might be some rare case where a law clearly lacks any purpose other than to harm a politically unpopular group, the president’s proclamation clearly did not fit into that category.
Toward the end of his opinion, Roberts stated:
More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which are delicate, complex, and involve large elements of prophecy.
Kennedy wrote a short concurring opinion, affirming the “necessity that officials adhere to [First Amendment] guarantees and mandates in all their actions.”
Thomas also wrote separately, expressing serious doubt about the ability of federal district courts to enter universal injunctions, an issue the majority chose not to address.
Justice Stephen Breyer wrote a dissenting opinion, joined by Justice Elena Kagan, expressing the view that a president’s antireligious bias is a sufficient basis to set the proclamation aside, but that more evidence is required.
And Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, also dissented, arguing that a reasonable observer would conclude the proclamation was motivated by anti-Muslim animus and thus the plaintiffs are likely to succeed on the merits of their Establishment Clause claim.
In her dissent, Sotomayor invoked the Supreme Court’s infamous decision in Korematsu v. United States, in which the justices upheld the constitutionality of President Franklin Roosevelt’s order interning Japanese-Americans during World War II.
This evoked a strong response from Roberts, who wrote:
Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. … [I]t is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.
The chief justice noted that the “dissent’s reference to Korematsu, however, affords this Court the 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.”
As the Supreme Court acknowledged in Reno v. American-Arab Anti-Discrimination Committee in 1999, courts are “ill equipped to determine [the] authenticity and utterly unable to assess [the] adequacy” of a president’s “reasons for deeming nationals of a particular country a special threat.”
Indeed, as the Supreme Court stated in 2010 in Holder v. Humanitarian Law Project, “when it comes to collecting evidence and drawing factual inferences” in the area of national security, “the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate.”
As Roberts noted, courts traditionally accord great deference to the executive branch when it comes to national security issues, and for good reason.
After all, the president receives daily classified intelligence briefings about the many threats we face. Federal judges do not. Presidents are given primary responsibility for protecting our homeland. Federal judges are not.
The Supreme Court reached the correct conclusion here, and we are all just a little bit safer as a result.