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SUPREME COURT OF THE UNITED STATES
_________________
No. 17–965
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al., PETITIONERS
v. HAWAII, et al.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 26, 2018]
Chief Justice Roberts delivered the opinion of
the Court.
Under 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. The Act also vests the President with
authority to restrict the entry of aliens when- ever he finds that
their entry “would be detrimental to the interests of the United
States.” 8 U. S. C. §1182(f). Relying on that delegation,
the President concluded that it was necessary to impose entry
restrictions on nationals of countries that do not share adequate
information for an informed entry determination, or that otherwise
present national security risks. Presidential Proclamation No.
9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in
this litigation, respondents here, challenged the application of
those entry restrictions to certain aliens abroad. We now decide
whether the President had authority under the Act to issue the
Proclamation, and whether the entry policy violates the
Establishment Clause of the First Amendment.
I
A
Shortly after taking office, President Trump
signed Executive Order No. 13769, Protecting the Nation From
Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977
(2017) (EO–1). EO–1 directed the Secretary of Homeland Security to
conduct a review to examine the adequacy of information provided by
foreign governments about their nationals seeking to enter the
United States. §3(a). Pending that review, the order suspended for
90 days the entry of foreign nationals from seven countries—Iran,
Iraq, Libya, Somalia, Sudan, Syria, and Yemen—that had been
previously identified by Congress or prior administrations as
posing heightened terrorism risks. §3(c). The District Court for
the Western District of Washington entered a temporary restraining
order blocking the entry restrictions, and the Court of Appeals for
the Ninth Circuit denied the Government’s request to stay that
order.
Washington v.
Trump, 847 F. 3d 1151
(2017) (
per curiam).
In response, the President revoked EO–1,
replacing it with Executive Order No. 13780, which again directed a
worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing
investigative burdens on agencies and the need to diminish the risk
that dangerous individuals would enter without adequate vetting,
EO–2 also temporarily restricted the entry (with case-by-case
waivers) of foreign nationals from six of the countries covered by
EO–1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a).
The order explained that those countries had been selected because
each “is a state sponsor of terrorism, has been significantly
compromised by terrorist organizations, or contains active conflict
zones.” §1(d). The entry restriction was to stay in effect for 90
days, pending completion of the worldwide review.
These interim measures were immediately
challenged in court. The District Courts for the Districts of
Maryland and Hawaii entered nationwide preliminary injunctions
barring enforcement of the entry suspension, and the respective
Courts of Appeals upheld those injunctions, albeit on different
grounds.
International Refugee Assistance Project
(
IRAP) v.
Trump, 857 F. 3d 554 (CA4 2017);
Hawaii v.
Trump, 859 F. 3d 741 (CA9 2017)
(
per curiam). This Court granted certiorari and stayed the
injunctions—allowing the entry suspension to go into effect—with
respect to foreign nationals who lacked a “credible claim of a bona
fide relationship” with a person or entity in the United States.
Trump v.
IRAP, 582 U. S. ___, ___ (2017) (
per
curiam) (slip op., at 12). The temporary restrictions in EO–2
expired before this Court took any action, and we vacated the lower
court decisions as moot.
Trump v.
IRAP, 583
U. S. ___ (2017);
Trump v.
Hawaii, 583
U. S. ___ (2017).
On September 24, 2017, after completion of the
worldwide review, the President issued the Proclamation before
us—Proclamation No. 9645, Enhancing Vetting Capabilities and
Processes for Detecting Attempted Entry Into the United States by
Terrorists or Other Public-Safety Threats. 82 Fed. Reg. 45161. The
Proclamation (as its title indicates) sought to improve vetting
procedures by identifying ongoing deficiencies in the information
needed to assess whether nationals of particular countries present
“public safety threats.” §1(a). To further that purpose, the
Proclamation placed entry restrictions on the nationals of eight
foreign states whose systems for managing and sharing information
about their nationals the President deemed inadequate.
The Proclamation described how foreign states
were selected for inclusion based on the review undertaken pursuant
to EO–2. As part of that review, the Department of Homeland
Security (DHS), in consultation with the State Department and
several intelligence agencies, developed a “baseline” for the
information required from foreign governments to confirm the
identity of individuals seeking entry into the United States, and
to determine whether those individuals pose a security threat.
§1(c). The baseline included three components. The first,
“identity-management information,” focused on whether a foreign
government ensures the integrity of travel documents by issuing
electronic passports, reporting lost or stolen passports, and
making available additional identity-related information. Second,
the agencies considered the extent to which the country discloses
information on criminal history and suspected terrorist links,
provides travel document exemplars, and facilitates the U. S.
Government’s receipt of information about airline passengers and
crews traveling to the United States. Finally, the agencies weighed
various indicators of national security risk, including whether the
foreign state is a known or potential terrorist safe haven and
whether it regularly declines to receive returning nationals
following final orders of removal from the United States.
Ibid.
DHS collected and evaluated data regarding all
foreign governments. §1(d). It identified 16 countries as having
deficient information-sharing practices and presenting national
security concerns, and another 31 countries as “at risk” of
similarly failing to meet the baseline. §1(e). The State Department
then undertook diplomatic efforts over a 50-day period to encourage
all foreign governments to improve their practices. §1(f ). As
a result of that effort, numerous countries provided DHS with
travel document exemplars and agreed to share information on known
or suspected terrorists.
Ibid.
Following the 50-day period, the Acting
Secretary of Homeland Security concluded that eight countries—Chad,
Iran, Iraq, Libya, North Korea, Syria, Venezuela, and
Yemen—remained deficient in terms of their risk profile and
willingness to provide requested information. The Acting Secretary
recommended that the President impose entry restrictions on certain
nationals from all of those countries except Iraq. §§1(g), (h). She
also concluded that although Somalia generally satisfied the
information-sharing component of the baseline standards, its
“identity-management deficiencies” and “significant terrorist
presence” presented special circumstances justifying additional
limitations. She therefore recommended entry limitations for
certain nationals of that country. §1(i). As for Iraq, the Acting
Secretary found that entry limitations on its nationals were not
warranted given the close cooperative relationship between the
U. S. and Iraqi Governments and Iraq’s commitment to combating
ISIS. §1(g).
After consulting with multiple Cabinet members
and other officials, the President adopted the Acting Secretary’s
recommendations and issued the Proclamation. Invoking his authority
under 8 U. S. C. §§1182(f ) and 1185(a), the
President determined that certain entry restrictions were necessary
to “prevent the entry of those foreign nationals about whom the
United States Government lacks sufficient information”; “elicit
improved identity- management and information-sharing protocols and
practices from foreign governments”; and otherwise “advance [the]
foreign policy, national security, and counterterrorism objectives”
of the United States. Proclamation §1(h). The President explained
that these restrictions would be the “most likely to encourage
cooperation” while “protect[ing] the United States until such time
as improvements occur.”
Ibid.
The Proclamation imposed a range of restrictions
that vary based on the “distinct circumstances” in each of the
eight countries.
Ibid. For countries that do not cooperate
with the United States in identifying security risks (Iran, North
Korea, and Syria), the Proclamation suspends entry of all
nationals, except for Iranians seeking nonimmigrant student and
exchange-visitor visas. §§2(b)(ii), (d)(ii), (e)(ii). For countries
that have information-sharing deficiencies but are nonetheless
“valuable counterterrorism partner[s]” (Chad, Libya, and Yemen), it
restricts entry of nationals seeking immigrant visas and
nonimmigrant business or tourist visas. §§2(a)(i), (c)(i), (g)(i).
Because Somalia generally satisfies the baseline standards but was
found to present special risk factors, the Proclamation suspends
entry of nationals seeking immigrant visas and requires additional
scrutiny of nationals seeking nonimmigrant visas. §2(h)(ii). And
for Venezuela, which refuses to cooperate in information sharing
but for which alternative means are available to identify its
nationals, the Proclamation limits entry only of certain government
officials and their family members on nonimmigrant business or
tourist visas. §2(f )(ii).
The Proclamation exempts lawful permanent
residents and foreign nationals who have been granted asylum.
§3(b). It also provides for case-by-case waivers when a foreign
national demonstrates undue hardship, and that his entry is in the
national interest and would not pose a threat to public safety.
§3(c)(i); see also §3(c)(iv) (listing examples of when a waiver
might be appropriate, such as if the foreign national seeks to
reside with a close family member, obtain urgent medical care, or
pursue significant business obligations). The Proclamation further
directs DHS to assess on a continuing basis whether entry
restrictions should be modified or continued, and to report to the
President every 180 days. §4. Upon completion of the first such
review period, the President, on the recommendation of the
Secretary of Homeland Security, determined that Chad had
sufficiently improved its practices, and he accordingly lifted
restrictions on its nationals. Presidential Proclamation No. 9723,
83 Fed. Reg. 15937 (2018).
B
Plaintiffs in this case are the State of
Hawaii, three individuals (Dr. Ismail Elshikh, John Doe #1, and
John Doe #2), and the Muslim Association of Hawaii. The State
operates the University of Hawaii system, which recruits students
and faculty from the designated countries. The three individual
plaintiffs are U. S. citizens or lawful permanent residents
who have relatives from Iran, Syria, and Yemen applying for
immigrant or nonimmigrant visas. The Association is a nonprofit
organization that operates a mosque in Hawaii.
Plaintiffs challenged the Proclamation—except as
applied to North Korea and Venezuela—on several grounds. As
relevant here, they argued that the Proclamation contravenes
provisions in the Immigration and Nationality Act (INA), 66Stat.
187, as amended. Plaintiffs further claimed that the Proclamation
violates the Establishment Clause of the First Amendment, because
it was motivated not by concerns pertaining to national security
but by animus toward Islam.
The District Court granted a nationwide
preliminary injunction barring enforcement of the entry
restrictions. The court concluded that the Proclamation violated
two provisions of the INA: §1182(f ), because the President
did not make sufficient findings that the entry of the covered
foreign nationals would be detrimental to the national interest,
and §1152(a)(1)(A), because the policy discriminates against
immigrant visa applicants on the basis of nationality. 265
F. Supp. 3d 1140, 1155–1159 (Haw. 2017). The Government
requested expedited briefing and sought a stay pending appeal. The
Court of Appeals for the Ninth Circuit granted a partial stay,
permitting enforcement of the Proclamation with respect to foreign
nationals who lack a bona fide relationship with the United States.
This Court then stayed the injunction in full pending disposition
of the Government’s appeal. 583 U. S. ___ (2017).
The Court of Appeals affirmed. The court first
held that the Proclamation exceeds the President’s authority under
§1182(f ). In its view, that provision authorizes only a
“temporary” suspension of entry in response to “exigencies” that
“Congress would be ill-equipped to address.” 878 F. 3d 662,
684, 688 (2017). The court further reasoned that the Proclamation
“conflicts with the INA’s finely reticulated regulatory scheme” by
addressing “matters of immigration already passed upon by
Congress.”
Id., at 685, 690. The Ninth Circuit then turned
to §1152(a)(1)(A) and determined that the entry restrictions also
contravene the prohibition on nationality-based discrimination in
the issuance of immigrant visas. The court did not reach
plaintiffs’ Establishment Clause claim.
We granted certiorari. 583 U. S. ___
(2018).
II
Before addressing the merits of plaintiffs’
statutory claims, we consider whether we have authority to do so.
The Government argues that plaintiffs’ challenge to the
Proclamation under the INA is not justiciable. Relying on the
doctrine of consular nonreviewability, the Government contends that
because aliens have no “claim of right” to enter the United States,
and because exclusion of aliens is “a fundamental act of
sovereignty” by the political branches, review of an exclusion
decision “is not within the province of any court, unless expressly
authorized by law.”
United States ex rel. Knauff v.
Shaughnessy, 338 U. S. 537, 542–543 (1950). According
to the Government, that principle barring review is reflected in
the INA, which sets forth a comprehensive framework for review of
orders of removal, but authorizes judicial review only for aliens
physically present in the United States. See Brief for Petitioners
19–20 (citing 8 U. S. C. §1252).
The justiciability of plaintiffs’ challenge
under the INA presents a difficult question. The Government made
similar arguments that no judicial review was available in
Sale v.
Haitian Centers Council, Inc., 509 U. S.
155 (1993). The Court in that case, however, went on to consider on
the merits a statutory claim like the one before us without
addressing the issue of reviewability. The Government does not
argue that the doctrine of consular nonreview- ability goes to the
Court’s jurisdiction, see Tr. of Oral Arg. 13, nor does it point to
any provision of the INA that expressly strips the Court of
jurisdiction over plaintiffs’ claims, see
Sebelius v.
Auburn Regional Medical Center, 568 U. S. 145, 153
(2013) (requiring Congress to “clearly state[ ]” that a
statutory provision is jurisdictional). As a result, we may assume
without deciding that plaintiffs’ statutory claims are reviewable,
notwithstanding consular nonreviewability or any other statutory
nonreviewability issue, and we proceed on that basis.
III
The INA establishes numerous grounds on which
an alien abroad may be inadmissible to the United States and
ineligible for a visa. See,
e.g., 8 U. S. C.
§§1182(a)(1) (health-related grounds), (a)(2) (criminal history),
(a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy
grounds). Congress has also delegated to the President authority to
suspend or restrict the entry of aliens in certain circumstances.
The principal source of that authority, §1182(f ), enables the
President to “suspend the entry of all aliens or any class of
aliens” whenever he “finds” that their entry “would be detrimental
to the interests of the United States.”[
1]
Plaintiffs argue that the Proclamation is not a
valid exercise of the President’s authority under the INA. In their
view, §1182(f ) confers only a residual power to temporarily
halt the entry of a discrete group of aliens engaged in harmful
conduct. They also assert that the Proclamation violates another
provision of the INA— 8 U. S. C. §1152(a)(1)(A)—because
it discriminates on the basis of nationality in the issuance of
immigrant visas.
By its plain language, §1182(f ) grants the
President broad discretion to suspend the entry of aliens into the
United States. 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.
A
The text of §1182(f ) states:
“Whenever the President finds that the
entry of any aliens or of any class of aliens into the United
States would be detrimental to the interests of the United States,
he may by proclamation, and for such period as he shall deem
necessary, suspend the entry of all aliens or any class of aliens
as immigrants or nonimmigrants, or impose on the entry of aliens
any restrictions he may deem to be appropriate.”
By its terms, §1182(f ) exudes deference to
the President in every clause. It 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”). It is therefore unsurprising that we have
previously observed that §1182(f ) vests the President with
“ample power” to impose entry restrictions in addition to those
elsewhere enumerated in the INA.
Sale, 509 U. S., at
187 (finding it “perfectly clear” that the President could
“establish a naval blockade” to prevent illegal migrants from
entering the United States); see also
Abourezk v.
Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986)
(describing the “sweeping proclamation power” in §1182(f ) as
enabling the President to supplement the other grounds of
inadmissibility in the INA).
The Proclamation falls well within this
comprehensive delegation. The sole prerequisite set forth in
§1182(f ) is that the President “find[ ]” that the entry
of the covered aliens “would be detrimental to the interests of the
United States.” The President has undoubtedly fulfilled that
requirement here. He first ordered DHS and other agencies to
conduct a comprehensive evaluation of every single country’s
compliance with the information and risk assessment baseline. The
President then issued a Proclamation setting forth extensive
findings describing how deficiencies in the practices of select
foreign governments—several of which are state sponsors of
terrorism—deprive the Government of “sufficient information to
assess the risks [those countries’ nationals] pose to the United
States.” Proclamation §1(h)(i). Based on that review, the President
found that it was in the national interest to restrict entry of
aliens who could not be vetted with adequate information—both to
protect national security and public safety, and to induce
improvement by their home countries. The Proclamation therefore
“craft[ed] . . . country-specific restrictions that would
be most likely to encourage cooperation given each country’s
distinct circumstances,” while securing the Nation “until such time
as improvements occur.”
Ibid.[
2]
Plaintiffs believe that these findings are
insufficient. They argue, as an initial matter, that the
Proclamation fails to provide a persuasive rationale for why
nationality alone renders the covered foreign nationals a security
risk. And they further discount the President’s stated concern
about deficient vetting because the Proclamation allows many aliens
from the designated countries to enter on nonimmigrant visas.
Such arguments are grounded on the premise that
§1182(f ) not only requires the President to
make a
finding that entry “would be detrimental to the interests of the
United States,” but also to explain that finding with sufficient
detail to enable judicial review. That premise is questionable. See
Webster v.
Doe, 486 U. S. 592, 600 (1988)
(concluding that a statute authorizing the CIA Director to
terminate an employee when the Director “shall deem such
termination necessary or advisable in the interests of the United
States” forecloses “any meaningful judicial standard of review”).
But even assuming that some form of review is appropriate,
plaintiffs’ attacks on the sufficiency of the President’s findings
cannot be sustained. The 12-page Proclamation—which thoroughly
describes the process, agency evaluations, and recommendations
underlying the President’s chosen restrictions—is more detailed
than any prior order a President has issued under §1182(f ).
Contrast Presidential Proclamation No. 6958, 3 CFR 133 (1996)
(President Clinton) (explaining in one sentence why suspending
entry of members of the Sudanese government and armed forces “is in
the foreign policy interests of the United States”); Presidential
Proclamation No. 4865, 3 CFR 50–51 (1981) (President Reagan)
(explaining in five sentences why measures to curtail “the
continuing illegal migration by sea of large numbers of
undocumented aliens into the southeastern United States” are
“necessary”).
Moreover, plaintiffs’ request for a searching
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. “Whether the
President’s chosen method” of addressing perceived risks is
justified from a policy perspective is “irrelevant to the scope of
his [§1182(f )] authority.”
Sale, 509 U. S., at
187–188. And when the President adopts “a preventive measure
. . . in the context of international affairs and
national security,” he is “not required to conclusively link all of
the pieces in the puzzle before [courts] grant weight to [his]
empirical conclusions.”
Holder v.
Humanitarian Law
Project, 561 U. S. 1, 35 (2010).
The Proclamation also comports with the
remaining textual limits in §1182(f ). We agree with
plaintiffs that the word “suspend” often connotes a “defer[ral]
till later,” Webster’s Third New International Dictionary 2303
(1966). But that does not mean that the President is required to
prescribe in advance a fixed end date for the entry restrictions.
Section 1182(f ) authorizes the President to suspend entry
“for such period as he shall deem necessary.” It follows that when
a President suspends entry in response to a diplomatic dispute or
policy concern, he may link the duration of those restrictions,
implicitly or explicitly, to the resolution of the triggering
condition. See,
e.g., Presidential Proclamation No. 5829, 3
CFR 88 (1988) (President Reagan) (suspending the entry of certain
Panamanian nationals “until such time as . . . democracy
has been restored in Panama”); Presidential Proclamation No. 8693,
3 CFR 86–87 (2011) (President Obama) (suspending the entry of
individuals subject to a travel restriction under United Nations
Security Council resolutions “until such time as the Secretary of
State determines that [the suspension] is no longer necessary”). In
fact, not one of the 43 suspension orders issued prior to this
litigation has specified a precise end date.
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. Proclamation Preamble, and
§1(h); see
ibid. (explaining that the aim is to
“relax[ ] or remove[ ]” the entry restrictions “as soon
as possible”). To that end, the Proclamation establishes an ongoing
process to engage covered nations and assess every 180 days whether
the entry restrictions should be modified or terminated. §§4(a),
(b). Indeed, after the initial review period, the President
determined that Chad had made sufficient improvements to its
identity-management protocols, and he accordingly lifted the entry
suspension on its nationals. See Proclamation No. 9723, 83 Fed.
Reg. 15937.
Finally, the Proclamation properly identifies a
“class of aliens”—nationals of select countries—whose entry is
suspended. Plaintiffs argue that “class” must refer to a
well-defined group of individuals who share a common
“characteristic” apart from nationality. Brief for Respondents 42.
But the text of §1182(f ), of course, does not say that, and
the word “class” comfortably encompasses a group of people linked
by nationality. Plaintiffs also contend that the class cannot be
“overbroad.” Brief for Respondents 42. But that simply amounts to
an unspoken tailoring requirement found nowhere in Congress’s grant
of authority to suspend entry of not only “any class of aliens” but
“all aliens.”
In short, the language of §1182(f ) is
clear, and the Proclamation does not exceed any textual limit on
the President’s authority.
B
Confronted with this “facially broad grant of
power,” 878 F. 3d, at 688, plaintiffs focus their attention on
statutory structure and legislative purpose. They seek support in,
first, the immigration scheme reflected in the INA as a whole, and,
second, the legislative history of §1182(f ) and historical
practice. Neither argument justifies departing from the clear text
of the statute.
1
Plaintiffs’ structural argument starts with
the premise that §1182(f ) does not give the President
authority to countermand Congress’s considered policy judgments.
The President, they say, may supplement the INA, but he cannot
supplant it. And in their view, the Proclamation falls in the
latter category because Congress has already specified a two-part
solution to the problem of aliens seeking entry from countries that
do not share sufficient information with the United States. First,
Congress designed an individualized vetting system that places the
burden on the alien to prove his admissibility. See §1361. Second,
instead of banning the entry of nationals from particular
countries, Congress sought to encourage information sharing through
a Visa Waiver Program offering fast-track admission for countries
that cooperate with the United States. See §1187.
We may assume that §1182(f ) does not allow
the President to expressly override particular provisions of the
INA. But plaintiffs have not identified any conflict between the
statute and the Proclamation that would implicitly bar the
President from addressing deficiencies in the Nation’s vetting
system.
To the contrary, the Proclamation supports
Congress’s individualized approach for determining admissibility.
The INA sets forth various inadmissibility grounds based on
connections to terrorism and criminal history, but those provisions
can only work when the consular officer has sufficient (and
sufficiently reliable) information to make that determination. The
Proclamation promotes the effectiveness of the vetting process by
helping to ensure the availability of such information.
Plaintiffs suggest that the entry restrictions
are unnecessary because consular officers can simply deny visas in
individual cases when an alien fails to carry his burden of proving
admissibility—for example, by failing to produce certified records
regarding his criminal history. Brief for Respondents 48. But that
misses the point: A critical finding of the Proclamation is that
the failure of certain countries to provide reliable information
prevents the Government from accurately determining whether an
alien is inadmissible or poses a threat. Proclamation §1(h). Unless
consular officers are expected to apply categorical rules and deny
entry from those countries across the board, fraudulent or
unreliable documentation may thwart their review in individual
cases. And at any rate, the INA certainly does not
require
that systemic problems such as the lack of reliable information be
addressed only in a progression of case-by-case admissibility
determinations. One of the key objectives of the Proclamation is to
encourage foreign governments to improve their practices, thus
facilitating the Government’s vetting process overall.
Ibid.
Nor is there a conflict between the Proclamation
and the Visa Waiver Program. The Program allows travel without a
visa for short-term visitors from 38 countries that have entered
into a “rigorous security partnership” with the United States. DHS,
U. S. Visa Waiver Program (Apr. 6, 2016),
http://www.dhs.gov/visa-waiver-program (as last visited June 25,
2018). Eligibility for that partnership involves “broad and
consequential assessments of [the country’s] foreign security
standards and operations.”
Ibid. A foreign government must
(among other things) undergo a comprehensive evaluation of its
“counterterrorism, law enforcement, immigration enforcement,
passport security, and border management capabilities,” often
including “operational site inspections of airports, seaports, land
borders, and passport production and issuance facilities.”
Ibid.
Congress’s decision to authorize a benefit for
“many of America’s closest allies,”
ibid., did not
implicitly foreclose the Executive from imposing tighter
restrictions on nationals of certain high-risk countries. The Visa
Waiver Program creates a special exemption for citizens of
countries that maintain exemplary security standards and offer
“reciprocal [travel] privileges” to United States citizens. 8
U. S. C. §1187(a)(2)(A). But in establishing a select
partnership covering less than 20% of the countries in the world,
Congress did not address what requirements should govern the entry
of nationals from the vast majority of countries that fall short of
that gold standard—particularly those nations presenting heightened
terrorism concerns. Nor did Congress attempt to determine—as the
multi-agency review process did—whether those high-risk countries
provide a minimum baseline of information to adequately vet their
nationals. Once again, this is not a situation where “Congress has
stepped into the space and solved the exact problem.” Tr. of Oral
Arg. 53.
Although plaintiffs claim that their reading
preserves for the President a flexible power to “supplement” the
INA, their understanding of the President’s authority is remarkably
cramped: He may suspend entry by classes of aliens “similar in
nature” to the existing categories of inadmissibility—but not too
similar—or only in response to “some exigent circumstance” that
Congress did not already touch on in the INA. Brief for Respondents
31, 36, 50; see also Tr. of Oral Arg. 57 (“Presidents have wide
berth in this area . . . if there’s any sort of
emergency.”). In any event, no Congress that wanted to confer on
the President only a residual authority to address emergency
situations would ever use language of the sort in §1182(f ).
Fairly read, the provision vests authority in the President to
impose additional limitations on entry beyond the grounds for
exclusion set forth in the INA—including in response to
circumstances that might affect the vetting system or other
“interests of the United States.”
Because plaintiffs do not point to any
contradiction with another provision of the INA, the President has
not exceeded his authority under §1182(f ).
2
Plaintiffs seek to locate additional
limitations on the scope of §1182(f ) in the statutory
background and legislative history. Given the clarity of the text,
we need not consider such extra-textual evidence. See
State Farm
Fire & Casualty Co. v.
United States ex rel. Rigsby,
580 U. S. ___, ___ (2016) (slip op., at 9). At any rate,
plaintiffs’ evidence supports the plain meaning of the
provision.
Drawing on legislative debates over
§1182(f ), plaintiffs suggest that the President’s suspension
power should be limited to exigencies where it would be difficult
for Congress to react promptly. Precursor provisions enacted during
the First and Second World Wars confined the President’s exclusion
authority to times of “war” and “national emergency.” See Act of
May 22, 1918, §1(a), 40Stat. 559; Act of June 21, 1941, ch. 210,
§1, 55Stat. 252. When Congress enacted §1182(f ) in 1952,
plaintiffs note, it borrowed “nearly verbatim” from those
predecessor statutes, and one of the bill’s sponsors affirmed that
the provision would apply only during a time of crisis. According
to plaintiffs, it therefore follows that Congress sought to
delegate only a similarly tailored suspension power in
§1182(f ). Brief for Respondents 39–40.
If anything, the drafting history suggests the
opposite. In borrowing “nearly verbatim” from the pre-existing
statute, Congress made one critical alteration—it removed the
national emergency standard that plaintiffs now seek to reintroduce
in another form. Weighing Congress’s conscious departure from its
wartime statutes against an isolated floor statement, the departure
is far more probative. See
NLRB v.
SW General, Inc.,
580 U. S. ___, ___ (2017) (slip op., at 16) (“[F]loor
statements by individual legislators rank among the least
illuminating forms of legislative history.”). When Congress wishes
to condition an exercise of executive authority on the President’s
finding of an exigency or crisis, it knows how to say just that.
See,
e.g., 16 U. S. C. §824
o–1(b); 42
U. S. C. §5192; 50 U. S. C. §§1701, 1702. Here,
Congress instead chose to condition the President’s exercise of the
suspension authority on a different finding: that the entry of an
alien or class of aliens would be “detrimental to the interests of
the United States.”
Plaintiffs also strive to infer limitations from
executive practice. By their count, every previous suspension order
under §1182(f ) can be slotted into one of two categories. The
vast majority targeted discrete groups of foreign nationals
engaging in conduct “deemed harmful by the immigration laws.” And
the remaining entry restrictions that focused on entire
nationalities—namely, President Carter’s response to the Iran
hostage crisis and President Reagan’s suspension of immigration
from Cuba—were, in their view, designed as a response to diplomatic
emergencies “that the immigration laws do not address.” Brief for
Respondents 40–41.
Even if we were willing to confine expansive
language in light of its past applications, the historical evidence
is more equivocal than plaintiffs acknowledge. Presidents have
repeatedly suspended entry not because the covered nationals
themselves engaged in harmful acts but instead to retaliate for
conduct by their governments that conflicted with U. S.
foreign policy interests. See,
e.g., Exec. Order No. 13662,
3 CFR 233 (2014) (President Obama) (suspending entry of Russian
nationals working in the financial services, energy, mining,
engineering, or defense sectors, in light of the Russian
Federation’s “annexation of Crimea and its use of force in
Ukraine”); Presidential Proclamation No. 6958, 3 CFR 133 (1997)
(President Clinton) (suspending entry of Sudanese governmental and
military personnel, citing “foreign policy interests of the United
States” based on Sudan’s refusal to comply with United Nations
resolution). And while some of these reprisals were directed at
subsets of aliens from the countries at issue, others broadly
suspended entry on the basis of nationality due to ongoing
diplomatic disputes. For example, President Reagan invoked
§1182(f ) to suspend entry “as immigrants” by almost all Cuban
nationals, to apply pressure on the Cuban Government. Presidential
Proclamation No. 5517, 3 CFR 102 (1986). Plaintiffs try to fit this
latter order within their carve-out for emergency action, but the
proclamation was based in part on Cuba’s decision to breach an
immigration agreement some 15 months earlier.
More significantly, plaintiffs’ argument about
historical practice is a double-edged sword. The more ad hoc their
account of executive action—to fit the history into their
theory—the harder it becomes to see such a refined delegation in a
statute that grants the President sweeping authority to decide
whether to suspend entry, whose entry to suspend, and for how
long.
C
Plaintiffs’ final statutory argument is that
the President’s entry suspension violates §1152(a)(1)(A), which
provides that “no person shall . . . be discriminated
against in the issuance of an immigrant visa because of the
person’s race, sex, nationality, place of birth, or place of
residence.” They contend that we should interpret the provision as
prohibiting nationality-based discrimination throughout the
entire immigration process, despite the reference in
§1152(a)(1)(A) to the act of visa issuance alone. Specifically,
plaintiffs argue that §1152(a)(1)(A) applies to the predicate
question of a visa applicant’s eligibility for admission and the
subsequent question whether the holder of a visa may in fact enter
the country. Any other conclusion, they say, would allow the
President to circumvent the protections against discrimination
enshrined in §1152(a)(1)(A).
As an initial matter, this argument challenges
only the validity of the entry restrictions on
immigrant
travel. Section 1152(a)(1)(A) is expressly limited to the issuance
of “immigrant visa[s]” while §1182(f ) allows the Presi- dent
to suspend entry of “immigrants or nonimmigrants.” At a minimum,
then, plaintiffs’ reading would not affect any of the limitations
on nonimmigrant travel in the Proclamation.
In any event, we reject plaintiffs’
interpretation because it ignores the basic distinction between
admissibility determinations and visa issuance that runs throughout
the INA.[
3] Section 1182
defines the pool of individuals who are admissible to the United
States. Its restrictions come into play at two points in the
process of gaining entry (or admission)[
4] into the United States. First, any alien who is
inadmissible under §1182 (based on, for example, health risks,
criminal history, or foreign policy consequences) is screened out
as “ineligible to receive a visa.” 8 U. S. C. §1201(g).
Second, even if a consular officer issues a visa, entry into the
United States is not guaranteed. As every visa application
explains, a visa does not entitle an alien to enter the United
States “if, upon arrival,” an immigration officer determines that
the applicant is “inadmissible under this chapter, or any other
provision of law”—including §1182(f ). §1201(h).
Sections 1182(f ) and 1152(a)(1)(A) thus
operate in different spheres: Section 1182 defines the universe of
aliens who are admissible into the United States (and therefore
eligible to receive a visa). Once §1182 sets the boundaries of
admissibility into the United States, §1152(a)(1)(A) prohibits
discrimination in the allocation of immigrant visas based on
nationality and other traits. The distinction between
admissibility—to which §1152(a)(1)(A) does not apply—and visa
issuance—to which it does—is apparent from the text of the
provision, which specifies only that its protections apply to the
“issuance” of “immigrant visa[s],” without mentioning admissibility
or entry. Had Congress instead intended in §1152(a)(1)(A) to
constrain the President’s power to determine who may enter the
country, it could easily have chosen language directed to that end.
See,
e.g., §§1182(a)(3)(C)(ii), (iii) (providing that
certain aliens “
shall not be excludable or subject to
restrictions or conditions on entry . . . because of
the alien’s past, current, or expected beliefs, statements, or
associations” (emphasis added)). “The fact that [Congress] did not
adopt [a] readily available and apparent alternative strongly
supports” the conclusion that §1152(a)(1)(A) does not limit the
President’s delegated authority under §1182(f ).
Knight
v.
Commissioner, 552 U. S. 181, 188 (2008).
Common sense and historical practice confirm as
much. Section 1152(a)(1)(A) has never been treated as a constraint
on the criteria for admissibility in §1182. Presidents have
repeatedly exercised their authority to suspend entry on the basis
of nationality. As noted, President Reagan relied on §1182(f )
to suspend entry “as immigrants by all Cuban nationals,” subject to
exceptions. Proclamation No. 5517, 51 Fed. Reg. 30470 (1986).
Likewise, President Carter invoked §1185(a)(1) to deny and revoke
visas to all Iranian nationals. See Exec. Order No. 12172, 3 CFR
461 (1979), as amended by Exec. Order No. 12206, 3 CFR 249 (1980);
Public Papers of the Presidents, Jimmy Carter, Sanctions Against
Iran, Vol. 1, Apr. 7, 1980, pp. 611–612 (1980); see also n. 1,
supra.
On plaintiffs’ reading, those orders were beyond
the President’s authority. The entry restrictions in the
Proclamation on North Korea (which plaintiffs do not challenge in
this litigation) would also be unlawful. Nor would the President be
permitted to suspend entry from particular foreign states in
response to an epidemic confined to a single region, or a verified
terrorist threat involving nationals of a specific foreign nation,
or even if the United States were on the brink of war.
In a reprise of their §1182(f ) argument,
plaintiffs attempt to soften their position by falling back on an
implicit exception for Presidential actions that are “closely
drawn” to address “specific fast-breaking exigencies.” Brief for
Respondents 60–61. Yet the absence of any textual basis for such an
exception more likely indicates that Congress did not intend for
§1152(a)(1)(A) to limit the President’s flexible authority to
suspend entry based on foreign policy interests. In addition,
plaintiffs’ proposed exigency test would require courts, rather
than the President, to determine whether a foreign government’s
conduct rises to the level that would trigger a supposed implicit
exception to a federal statute. See
Reno v.
American-Arab
Anti-Discrimination Comm., 525 U. S. 471, 491 (1999)
(explaining that even if the Executive “disclose[d] its
. . . reasons for deeming nationals of a particular
country a special threat,” courts would be “unable to assess their
adequacy”). The text of §1152(a)(1)(A) offers no standards that
would enable courts to assess, for example, whether the situation
in North Korea justifies entry restrictions while the terrorist
threat in Yemen does not.
* * *
The Proclamation is squarely within the scope
of Presidential authority under the INA. Indeed, neither dissent
even attempts any serious argument to the contrary, despite the
fact that plaintiffs’ primary contention below and in their
briefing before this Court was that the Proclamation violated the
statute.
IV
A
We now turn to plaintiffs’ claim that the
Proclamation was issued for the unconstitutional purpose of
excluding Muslims. Because we have an obligation to assure
ourselves of jurisdiction under Article III, we begin by addressing
the question whether plaintiffs have standing to bring their
constitutional challenge.
Federal courts have authority under the
Constitution to decide legal questions only in the course of
resolving “Cases” or “Controversies.” Art. III, §2. One of the
essential elements of a legal case or controversy is that the
plaintiff have standing to sue. Standing requires more than just a
“keen interest in the issue.”
Hollingsworth v.
Perry,
570 U. S. 693, 700 (2013). It requires allegations—and,
eventually, proof—that the plaintiff “personal[ly]” suffered a
concrete and particularized injury in connection with the conduct
about which he complains.
Spokeo, Inc. v.
Robins, 578
U. S. ___, ___ (2016) (slip op., at 7). In a case arising from
an alleged violation of the Establishment Clause, a plaintiff must
show, as in other cases, that he is “directly affected by the laws
and practices against which [his] complaints are directed.”
School Dist. of Abington Township v.
Schempp, 374
U. S. 203, 224, n. 9 (1963). That is an issue here because the
entry restrictions apply not to plaintiffs themselves but to others
seeking to enter the United States.
Plaintiffs first argue that they have standing
on the ground that the Proclamation “establishes a disfavored
faith” and violates “their own right to be free from federal
[religious] establishments.” Brief for Respondents 27–28 (emphasis
deleted). They describe such injury as “spirit- ual and dignitary.”
Id., at 29.
We need not decide whether the claimed dignitary
interest establishes an adequate ground for standing. The three
individual plaintiffs assert another, more concrete injury: the
alleged real-world effect that the Proclamation has had in keeping
them separated from certain relatives who seek to enter the
country. See
ibid.;
Town of Chester v.
Laroe
Estates, Inc., 581 U. S. ___, ___–___ (2017) (slip op., at
5–6) (“At least one plaintiff must have standing to seek each form
of relief requested in the complaint.”). We agree that a person’s
interest in being united with his relatives is sufficiently
concrete and particularized to form the basis of an Article III
injury in fact. This Court has previously considered the merits of
claims asserted by United States citizens regarding violations of
their personal rights allegedly caused by the Government’s
exclusion of particular foreign nationals. See
Kerry v.
Din, 576 U. S. ___, ___ (2015) (plurality opinion)
(slip op., at 15);
id., at ___ (Kennedy, J., concurring in
judgment) (slip op., at 1);
Kleindienst v.
Mandel,
408 U. S. 753, 762 (1972). Likewise, one of our prior stay
orders in this litigation recognized that an American individual
who has “a bona fide relationship with a particular person seeking
to enter the country . . . can legitimately claim
concrete hardship if that person is excluded.”
Trump v.
IRAP, 582 U. S., at ___ (slip op., at 13).
The Government responds that plaintiffs’
Establishment Clause claims are not justiciable because the Clause
does not give them a legally protected interest in the admission of
particular foreign nationals. But that argument—which depends upon
the scope of plaintiffs’ Establishment Clause rights—concerns the
merits rather than the justiciability of plaintiffs’ claims. We
therefore conclude that the individual plaintiffs have Article III
standing to challenge the exclusion of their relatives under the
Establishment Clause.
B
The First Amendment provides, in part, that
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” Our cases
recognize that “[t]he clearest command of the Establishment Clause
is that one religious denomination cannot be officially preferred
over another.”
Larson v.
Valente, 456 U. S. 228,
244 (1982). Plaintiffs believe that the Proclamation violates this
prohibition by singling out Muslims for disfavored treatment. The
entry suspension, they contend, operates as a “religious
gerrymander,” in part because most of the countries covered by the
Proclamation have Muslim-majority populations. And in their view,
deviations from the information-sharing baseline criteria suggest
that the results of the multi-agency review were “foreordained.”
Relying on Establishment Clause precedents concerning laws and
policies applied domestically, plaintiffs allege that the primary
purpose of the Proclamation was religious animus and that the
President’s stated concerns about vetting protocols and national
security were but pretexts for discriminating against Muslims.
Brief for Respondents 69–73.
At the heart of plaintiffs’ case is a series of
statements by the President and his advisers casting doubt on the
official objective of the Proclamation. For example, while a
candidate on the campaign trail, the President published a
“Statement on Preventing Muslim Immigration” that called for a
“total and complete shutdown of Muslims entering the United States
until our country’s representatives can figure out what is going
on.” App. 158. That statement remained on his campaign website
until May 2017.
Id., at 130–131. Then-candidate Trump also
stated that “Islam hates us” and asserted that the United States
was “having problems with Muslims coming into the country.”
Id., at 120–121, 159. Shortly after being elected, when
asked whether violence in Europe had affected his plans to “ban
Muslim immigration,” the President replied, “You know my plans. All
along, I’ve been proven to be right.”
Id., at 123.
One week after his inauguration, the President
issued EO–1. In a television interview, one of the President’s
campaign advisers explained that when the President “first
announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put
a commission together. Show me the right way to do it
legally.’ ”
Id., at 125. The adviser said he assembled
a group of Members of Congress and lawyers that “focused on,
instead of religion, danger. . . . [The order] is
based on places where there [is] substantial evidence that people
are sending terrorists into our country.”
Id., at 229.
Plaintiffs also note that after issuing EO–2 to
replace EO–1, the President expressed regret that his prior order
had been “watered down” and called for a “much tougher version” of
his “Travel Ban.” Shortly before the release of the Proclamation,
he stated that the “travel ban . . . should be far
larger, tougher, and more specific,” but “stupidly that would not
be politically correct.”
Id., at 132–133. More recently, on
November 29, 2017, the President retweeted links to three
anti-Muslim propaganda videos. In response to questions about those
videos, the President’s deputy press secretary denied that the
President thinks Muslims are a threat to the United States,
explaining that “the President has been talking about these
security issues for years now, from the campaign trail to the White
House” and “has addressed these issues with the travel order that
he issued earlier this year and the companion proclamation.”
IRAP v.
Trump, 883 F.3d 233, 267 (CA4 2018).
The President of the United States possesses an
extraordinary power to speak to his fellow citizens and on their
behalf. Our Presidents have frequently used that power to espouse
the principles of religious freedom and tolerance on which this
Nation was founded. In 1790 George Washington reassured the Hebrew
Congregation of Newport, Rhode Island that “happily the Government
of the United States . . . gives to bigotry no sanction,
to persecution no assistance [and] requires only that they who live
under its protection should demean themselves as good citizens.” 6
Papers of George Washington 285 (D. Twohig ed. 1996). President
Eisenhower, at the opening of the Islamic Center of Washington,
similarly pledged to a Muslim audience that “America would fight
with her whole strength for your right to have here your own
church,” declaring that “[t]his concept is indeed a part of
America.” Public Papers of the Presidents, Dwight D. Eisenhower,
June 28, 1957, p. 509 (1957). And just days after the attacks of
September 11, 2001, President George W. Bush returned to the same
Islamic Center to implore his fellow Americans—Muslims and
non-Muslims alike—to remember during their time of grief that
“[t]he face of terror is not the true faith of Islam,” and that
America is “a great country because we share the same values of
respect and dignity and human worth.” Public Papers of the
Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001).
Yet it cannot be denied that the Federal Government and the
Presidents who have carried its laws into effect have—from the
Nation’s earliest days—performed unevenly in living up to those
inspiring words.
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. In doing so, we must consider not only
the statements of a particular President, but also the authority of
the Presidency itself.
The case before us differs in numerous respects
from the conventional Establishment Clause claim. Unlike the
typical suit involving religious displays or school prayer,
plaintiffs seek to invalidate a national security directive
regulating the entry of aliens abroad. Their claim accordingly
raises a number of delicate issues regarding the scope of the
constitutional right and the manner of proof. The Proclamation,
moreover, is facially neutral toward religion. Plaintiffs therefore
ask the Court to probe the sincerity of the stated justifications
for the policy by reference to extrinsic statements—many of which
were made before the President took the oath of office. These
various aspects of plaintiffs’ challenge inform our standard of
review.
C
For more than a century, this Court 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.”
Fiallo v.
Bell, 430 U. S. 787, 792 (1977); see
Harisiades v.
Shaughnessy, 342 U. S. 580,
588–589 (1952) (“[A]ny policy toward aliens is vitally and
intricately interwoven with contemporaneous policies in regard to
the conduct of foreign relations [and] the war power.”). Because
decisions in these matters may implicate “relations with foreign
powers,” or involve “classifications defined in the light of
changing political and economic circumstances,” such judgments “are
frequently of a character more appropriate to either the
Legislature or the Executive.”
Mathews v.
Diaz, 426
U. S. 67, 81 (1976).
Nonetheless, although foreign nationals seeking
admission have no constitutional right to entry, this Court has
engaged in a circumscribed judicial inquiry when the denial of a
visa allegedly burdens the constitutional rights of a U. S.
citizen. In
Kleindienst v.
Mandel, the Attorney
General denied admission to a Belgian journalist and self-described
“revolutionary Marxist,” Ernest Mandel, who had been invited to
speak at a conference at Stanford University. 408 U. S., at
756–757. The professors who wished to hear Mandel speak challenged
that decision under the First Amendment, and we acknowledged that
their constitutional “right to receive information” was implicated.
Id., at 764–765. But we limited our review to whether the
Executive gave a “facially legitimate and bona fide” reason for its
action.
Id., at 769. Given the authority of the political
branches over admission, we held that “when the Executive exercises
this [delegated] power negatively 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.
Id., at 770.
The principal dissent suggests that
Mandel has no bearing on this case,
post, at 14, and
n. 5 (opinion of Sotomayor, J.) (hereinafter the dissent), but
our opinions have reaffirmed and applied its deferential standard
of review across different contexts and constitutional claims. In
Din, Justice Kennedy reiterated that “respect for the
political branches’ broad power over the creation and
administration of the immigration system” meant that the Government
need provide only a statutory citation to explain a visa denial.
576 U. S., at ___ (opinion concurring in judgment) (slip op.,
at 6). Likewise in
Fiallo, we applied
Mandel to a
“broad congressional policy” giving immigration preferences to
mothers of illegitimate children. 430 U. S., at 795. Even
though the statute created a “categorical” entry classification
that discriminated on the basis of sex and legitimacy,
post,
at 14, n. 5, the Court concluded that “it is not the judicial
role in cases of this sort to probe and test the justifications” of
immigration policies. 430 U. S., at 799 (citing
Mandel,
408 U. S., at 770). Lower courts have similarly applied
Mandel to broad executive action. See
Rajah v.
Mukasey, 544 F.3d 427, 433, 438–439 (CA2 2008) (upholding
National Security Entry-Exit Registration System instituted after
September 11, 2001).
Mandel’s narrow standard of review “has
particular force” in admission and immigration cases that overlap
with “the area of national security.”
Din, 576 U. S.,
at ___ (Kennedy, J., concurring in judgment) (slip op., at 3). For
one, “[j]udicial inquiry into the national-security realm raises
concerns for the separation of powers” by intruding on the
President’s constitutional responsibilities in the area of foreign
affairs.
Ziglar v.
Abbasi, 582 U. S. ___, ___
(2017) (slip op., at 19) (internal quotation marks omitted). For
another, “when it comes to collecting evidence and drawing
inferences” on questions of national security, “the lack of
competence on the part of the courts is marked.”
Humanitarian
Law Project, 561 U. S., at 34.
The upshot of our 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.
Mathews, 426 U. S., at 81–82. We need not
define the precise contours of that inquiry in this case. A
conventional application of
Mandel, asking only whether the
policy is facially legitimate and bona fide, would put an end to
our review. But the Government has suggested that it may be
appropriate here for the inquiry to extend beyond the facial
neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27
(describing
Mandel as “the starting point” of the analysis).
For our purposes today, we assume that we may look behind the face
of the Proclamation to the extent of applying rational basis
review. That standard of review considers whether the entry policy
is plausibly related to the Government’s stated objective to
protect the country and improve vetting processes. See
Railroad
Retirement Bd. v.
Fritz, 449 U. S. 166, 179 (1980).
As a result, we may consider plaintiffs’ extrinsic evidence, but
will uphold the policy so long as it can reasonably be understood
to result from a justification independent of unconstitutional
grounds.[
5]
D
Given the standard of review, it should come
as no surprise that the Court hardly ever strikes down a policy as
illegitimate under rational basis scrutiny. On the few occasions
where we have done so, a common thread has been that the laws at
issue lack any purpose other than a “bare . . . desire to
harm a politically unpopular group.”
Department of
Agriculture v.
Moreno, 413 U. S. 528, 534 (1973).
In one case, we invalidated a local zoning ordinance that required
a special permit for group homes for the intellectually disabled,
but not for other facilities such as fraternity houses or
hospitals. We did so on the ground that the city’s stated concerns
about (among other things) “legal responsibility” and “crowded
conditions” rested on “an irrational prejudice” against the
intellectually dis- abled.
Cleburne v.
Cleburne Living
Center, Inc., 473 U. S. 432, 448–450 (1985) (internal
quotation marks omitted). And in another case, this Court
overturned a state constitutional amendment that denied gays and
lesbians access to the protection of antidiscrimination laws. The
amendment, we held, was “divorced from any factual context from
which we 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.”
Romer v.
Evans, 517 U. S.
620, 632, 635 (1996).
The Proclamation does not fit this pattern. It
cannot be said that it is impossible to “discern a relationship to
legitimate state interests” or that the policy is “inexplicable by
anything but animus.” Indeed, the dissent can only attempt to argue
otherwise by refusing to apply anything resembling rational basis
review. But because there is persuasive evidence that the entry
suspension has a legitimate grounding in national security
concerns, quite apart from any religious hostility, we must accept
that independent justification.
The Proclamation is expressly premised on
legitimate purposes: preventing entry of nationals who cannot be
adequately vetted and inducing other nations to improve their
practices. The text says nothing about religion. Plaintiffs and the
dissent nonetheless emphasize that five of the seven nations
currently included in the Proclamation have Muslim-majority
populations. Yet that fact alone does not support an inference of
religious hostility, given that the policy covers just 8% 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. See 8 U. S. C.
§1187(a)(12)(A) (identifying Syria and state sponsors of terrorism
such as Iran as “countr[ies] or area[s] of concern” for purposes of
administering the Visa Waiver Program); Dept. of Homeland Security,
DHS Announces Further Travel Restrictions for the Visa Waiver
Program (Feb. 18, 2016) (designating Libya, Somalia, and Yemen as
additional countries of concern); see also
Rajah, 544 F. 3d,
at 433, n. 3 (describing how nonimmigrant aliens from Iran, Libya,
Somalia, Syria, and Yemen were covered by the National Security
Entry-Exit Registration System).
The Proclamation, moreover, reflects the results
of a worldwide review process undertaken by multiple Cabinet
officials and their agencies. Plaintiffs seek to discredit the
findings of the review, pointing to deviations from the review’s
baseline criteria resulting in the inclusion of Somalia and
omission of Iraq. But as the Proclamation explains, in each case
the determinations were justified by the distinct conditions in
each country. Although Somalia generally satisfies the
information-sharing component of the baseline criteria, it “stands
apart . . . in the degree to which [it] lacks command and
control of its territory.” Proclamation §2(h)(i). As for Iraq, the
Secretary of Homeland Security determined that entry restrictions
were not warranted in light of the close cooperative relationship
between the U. S. and Iraqi Governments and the country’s key
role in combating terrorism in the region. §1(g). It is, in any
event, difficult to see how exempting one of the largest
predominantly Muslim countries in the region from coverage under
the Proclamation can be cited as evidence of animus toward
Muslims.
The dissent likewise doubts the thoroughness of
the multi-agency review because a recent Freedom of Information Act
request shows that the final DHS report “was a mere 17 pages.”
Post, at 19. Yet a simple page count offers little insight
into the actual substance of the final report, much less
predecisional materials underlying it. See 5 U. S. C.
§552(b)(5) (exempting deliberative materials from FOIA
disclosure).
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.”
Chicago & Southern Air
Lines, Inc. v.
Waterman S. S. Corp., 333 U. S. 103,
111 (1948); see also
Regan v.
Wald, 468 U. S.
222, 242–243 (1984) (declining invitation to conduct an
“independent foreign policy analysis”). While we of course “do not
defer to the Government’s reading of the First Amendment,” the
Executive’s evaluation of the underlying facts is entitled to
appropriate weight, particularly in the context of litigation
involving “sensitive and weighty interests of national security and
foreign affairs.”
Humanitarian Law Project, 561 U. S.,
at 33–34.[
6]
Three additional features of the entry policy
support the Government’s claim of a legitimate national security
interest. First, since the President introduced entry restrictions
in January 2017, three Muslim-majority countries—Iraq, Sudan, and
Chad—have been removed from the list of covered countries. The
Proclamation emphasizes that its “conditional restrictions” will
remain in force only so long as necessary to “address” the
identified “inadequacies and risks,” Proclamation Preamble, and
§1(h), and establishes an ongoing process to engage covered nations
and assess every 180 days whether the entry restrictions should be
terminated, §§4(a), (b). In fact, in announcing the termination of
restrictions on nationals of Chad, the President also described
Libya’s ongoing engagement with the State Department and the steps
Libya is taking “to improve its practices.” Proclamation No. 9723,
83 Fed. Reg. 15939.
Second, for those countries that remain subject
to entry restrictions, the Proclamation includes significant
exceptions for various categories of foreign nationals. The policy
permits nationals from nearly every covered country to travel to
the United States on a variety of nonimmigrant visas. See,
e.g., §§2(b)–(c), (g), (h) (permitting student and exchange
visitors from Iran, while restricting only business and tourist
nonimmigrant entry for nationals of Libya and Yemen, and imposing
no restrictions on nonimmigrant entry for Somali nationals). These
carveouts for nonimmigrant visas are substantial: Over the last
three fiscal years—before the Proclamation was in effect—the
majority of visas issued to nationals from the covered countries
were nonimmigrant visas. Brief for Petitioners 57. The Proclamation
also exempts permanent resi- dents and individuals who have been
granted asylum. §§3(b)(i), (vi).
Third, the Proclamation creates a waiver program
open to all covered foreign nationals seeking entry as immigrants
or nonimmigrants. According to the Proclamation, consular officers
are to consider in each admissibility determination whether the
alien demonstrates that (1) denying entry would cause undue
hardship; (2) entry would not pose a threat to public safety; and
(3) entry would be in the interest of the United States. §3(c)(i);
see also §3(c)(iv) (listing examples of when a waiver might be
appropriate, such as if the foreign national seeks to reside with a
close family member, obtain urgent medical care, or pursue
significant business obligations). On its face, this program is
similar to the humanitarian exceptions set forth in President
Carter’s order during the Iran hostage crisis. See Exec. Order No.
12206, 3 CFR 249; Public Papers of the Presidents, Jimmy Carter,
Sanctions Against Iran, at 611–612 (1980) (outlining exceptions).
The Proclamation also directs DHS and the State Department to issue
guidance elaborating upon the circumstances that would justify a
waiver.[
7]
Finally, the dissent invokes
Korematsu v.
United States, 323 U. S. 214 (1944). Whatever
rhetorical advantage the dissent may see in doing so,
Korematsu has nothing to do with this case. 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. But it is wholly inapt
to liken that morally repugnant order to a facially neutral policy
denying certain foreign nationals the privilege of admission. See
post, at 26–28. The entry suspension is an act that is well
within executive authority and could have been taken by any other
President—the only question is evaluating the actions of this
particular President in promulgating an otherwise valid
Proclamation.
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.” 323 U. S.,
at 248 (Jackson, J., dissenting).
* * *
Under these circumstances, the Government has
set forth a sufficient national security justification to survive
rational basis review. We express no view on the soundness of the
policy. We simply hold today that plaintiffs have not demonstrated
a likelihood of success on the merits of their constitutional
claim.
V
Because plaintiffs have not shown that they
are likely to succeed on the merits of their claims, we reverse the
grant of the preliminary injunction as an abuse of discretion.
Winter v.
Natural Resources Defense Council, Inc.,
555 U. S. 7, 32 (2008). The case now returns to the lower
courts for such further proceedings as may be appropriate. Our
disposition of the case makes it unnecessary to consider the
propriety of the nationwide scope of the injunction issued by the
District Court.
The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.