Trump v. Hawaii, 585 U.S. ___ (2018)
President Trump lawfully exercised the broad discretion granted to him under section 1182(f) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f), to issue Proclamation No. 9645, suspending the entry of aliens into the United States, and the Proclamation does not violate the Establishment Clause. The Proclamation sought to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat,and placed entry restrictions on the nationals of foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.
The Supreme Court held that section 1182(f) entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions; Trump fulfilled section 1182(f)'s sole prerequisite that the President find that the entry of the covered aliens would be detrimental to the interests of the United States; even assuming that some form of inquiry into the persuasiveness of the President's findings was appropriate, plaintiffs' attacks on the sufficiency of the findings could not be sustained; the Proclamation comports with the remaining textual limits in section 1182(f); plaintiffs failed to identify any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation's vetting system; and plaintiffs' argument that the President's entry suspension violates section 1152(a)(1)(A) ignored the basic distinction between admissibility determinations and visa issuance that runs throughout the INA.
Finally, the Court applied rational basis review and held that plaintiffs, although they have standing to challenge the exclusion of their relatives, have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause where the Proclamation was expressly premised on legitimate purposes and said nothing about religion. The Court drew a distinction between whether it must consider not only the statements of a particular President, but also the authority of the Presidency itself. The Court concluded that the Government has set forth a sufficient national security justification to survive rational basis review.
President Trump lawfully exercised the broad discretion granted to him under 8 U.S.C. 1182(f) to issue Proclamation No. 9645, suspending the entry of aliens into the United States, and the Proclamation does not violate the Establishment Clause.
SUPREME COURT OF THE UNITED STATES
Syllabus
Trump, President of the United States, et al. v. Hawaii et al.
certiorari to the united states court of appeals for the ninth circuit
No. 17–965. Argued April 25, 2018—Decided June 26, 2018
In September 2017, the President issued Proclamation No. 9645, seeking to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present a security threat. 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. Foreign states were selected for inclusion based on a review undertaken pursuant to one of the President’s earlier Executive Orders. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and intelligence agencies, developed an information and risk assessment “baseline.” DHS then collected and evaluated data for all foreign governments, identifying those having deficient information-sharing practices and presenting national security concerns, as well as other countries “at risk” of failing to meet the baseline. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their practices, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient. She recommended entry restrictions for certain nationals from all of those countries but Iraq, which had a close cooperative relationship with the U. S. She also recommended including Somalia, which met the information-sharing component of the baseline standards but had other special risk factors, such as a significant terrorist presence. After consulting with multiple Cabinet members, the President adopted the recommendations and issued the Proclamation. Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he determined that certain restrictions were necessary to “prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information” and “elicit improved identity-management and information-sharing protocols and practices from foreign governments.” The Proclamation imposes a range of entry restrictions that vary based on the “distinct circumstances” in each of the eight countries. It exempts lawful permanent residents and provides case-by-case waivers under certain circumstances. It also directs DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the President determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals.
Plaintiffs—the State of Hawaii, three individuals with foreign relatives affected by the entry suspension, and the Muslim Association of Hawaii—argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforcement of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: §1182(f), which authorizes 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,” and §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.” The court did not reach the Establishment Clause claim.
Held:
1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Centers Council, Inc., 509 U. S. 155. Pp. 8–9.
2. The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. Pp. 9–24.
(a) 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, whose entry to suspend, for how long, and on what conditions. It thus 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. 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. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.
Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching inquiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.
The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary deferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. 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. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality. Pp. 10–15.
(b) Plaintiffs have not identified any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable information. Further, neither the legislative history of §1182(f) nor historical practice justifies departing from the clear text of the statute. Pp. 15–20.
(c) Plaintiffs’ argument that the President’s entry suspension violates §1152(a)(1)(A) ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. 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, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. Had Congress intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war. Pp. 20–24.
3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause. Pp. 24–38.
(a) The individual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause. 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. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. Pp. 24–26.
(b) 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. At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but 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, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. Pp. 26–29.
(c) 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. 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. That review is limited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow inquiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of applying rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. Pp. 30–32.
(d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclamation does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are 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. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters. See Holder v. Humanitarian Law Project, 561 U. S. 1, 33–34.
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. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33–38.
878 F. 3d 662, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Alito, and Gorsuch, JJ., joined. Kennedy, J., and Thomas, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.
JUDGMENT ISSUED. |
Judgment REVERSED and case REMANDED. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Alito, and Gorsuch, JJ., joined. Kennedy, J., and Thomas, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined. |
Letter from amici curiae Pars Equality Center, et al., filed. (Distributed). |
Letter of petitioners Donald J. Trump, President of the United States, et al. filed. (Distributed) |
Argued. For petitioners: Noel J. Francisco, Solicitor General, Department of Justice, Washington, D. C. For respondents: Neal K. Katyal, Washington, D. C. |
Motion for leave to file amicus brief filed by David Boyle GRANTED. |
Reply of petitioners Donald J. Trump, President of the United States, et al. filed. (Distributed) |
Motion of The Becket Fund for Religious Liberty for leave to participate in oral argument as amicus curiae and for divided argument DENIED. |
Brief amici curiae of Constitutional Law Scholars in Support of Respondents filed. (Distributed) |
Record received from the U.S.C.A. 9th Circuit is electronic and located on PACER, with the exception of one document that is SEALED and electronic. |
Motion of Former National Security Officials for leave to file amicus brief not accepted for filing. (April 04, 2018) |
Brief amici curiae of States of New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington, and the District of Columbia filed. (Distributed) |
Brief amici curiae of Immigration Law Scholars on the Text and Structure of the Immigration, and Nationality Act filed. (Distributed) |
Brief amici curiae of National Asian Pacific American Bar Association and Others filed. (Distributed) |
Brief amici curiae of Tahirih Justice Center, et al. filed. (Distributed) |
Brief amici curiae of International Law Scholars and Nongovernmental Organizations filed. (Distributed) |
Brief amici curiae of Eblal Zakzok, et al. filed. (Distributed) |
Brief amici curiae of Pars Equality Center, Iranian American Bar Association, and Public Affairs Alliance of Iranian Americans, Inc. filed. (Distributed) |
Brief amicus curiae of Japanese American Citizens League filed. (Distributed) |
Brief amici curiae of International Refugee Assistance Project, et al. filed. (Distributed) |
Brief amici curiae of Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law filed. (Distributed) |
Brief amici curiae of PEN America, et al. filed. (Distributed) |
Brief amici curiae of Anti-Defamation League, Jewish Council for Public Affairs, T'Ruah, Union for Reform Judaism, Central Conference of American Rabbis, and Women of Reform Judaism filed. (Distributed) |
Brief amici curiae of Members of Congress filed. (Distributed) |
Brief amici curiae of Mickey Edwards and Einer R. Elhauge filed. (Distributed) |
Record requested from the U.S.C.A. 9th Circuit. |
Brief amici curiae of Karen Korematsu, Jay Hirabayashi, Holly Yasui, The Fred T. Korematsu Center for Law and Equality, Civil Rights Organizations, and National Bar Associations of Color filed. (Distributed) |
Brief amici curiae of Immigration, Family, and Constitutional Law Professors filed. (Distributed) |
Brief amici curiae of Retired Generals and Admirals of the U.S. Armed Forces filed. (Distributed) |
Brief amicus curiae of American Jewish Committee filed. (Distributed) |
Brief amicus curiae of NAACP Legal Defense & Educational Fund, Inc. filed. (Distributed) |
Brief amici curiae of The Association of Art Museum Directors, The American Alliance of Museums, The Association of Academic Museums and Galleries, The College Art Association of America, 112 Art Museums filed. (Distributed) |
Brief amici curiae of Federal Courts Scholars filed. (Distributed) |
Brief amicus curiae of Plaintiffs in Iranian Alliances Across Borders v. Trump filed. (Distibuted) |
Brief amici curiae of City of Chicago et al. filed. (Distributed) |
Brief amici curiae of National Association of Muslim Lawyers and Other Muslim Bar Associations filed. (Distributed) |
Brief amicus curiae of New York University filed. (Distributed) |
Brief amici curiae of Episcopal Bishops filed. (Distributed) |
Brief amici curiae of U.S. Companies filed. (Distributed) |
Brief amici curiae of Former National Security Officials filed. (Distributed) |
Brief amici curiae of Interfaith Group of Religious and Interreligious Organizations filed (corrected filing). (Distributed) |
Motion for leave to file amicus brief filed by David Boyle. (Distributed) |
Brief amicus curiae of American Bar Association filed. (Distributed) |
Brief amici curiae of United States Conference of Catholic Bishops, et al. filed. (Distributed) |
Brief amicus curiae of Massachusetts Technology Leadership Council, Inc. filed. (Distributed) |
Brief amici curiae of Constitutional Law Scholars filed. (Distributed) |
Brief amici curiae of Colleges and Universities filed. (Distributed) |
Brief amici curiae of Evan McMullin, Anne Applebaum, Max Boot, Linda Chavez, Eliot Cohen, Mindy Finn, Juleanna Glover, Norman Ornstein, Michael Steele, Charlie Sykes, and Jerry Taylor filed. (Distributed) |
Brief amici curiae of Janet A. Napolitano, et al. filed. (Distributed) |
Brief amicus curiae of Freedom From Religion Foundation filed. (Distributed) |
Brief amicus curiae of American-Arab Anti-Discrimination Committee filed. (Distributed) |
Brief amici curiae of Certain Immigrant Rights Organizations filed. (Distributed) |
Brief amicus curiae of Interfaith Group of Religious and Interreligious Organizations filed (to be reprinted 3/30/18). |
Brief amici curiae of Scholars of Immigration Law filed. (Distributed) |
Brief amici curiae of American Counsel on Education and 32 Other Higher Education Associations filed. (Distributed) |
Brief amici curiae of Civil Rights Organizations filed. (Distributed) |
Brief amici curiae of Muslim Justice League, Muslim Public Affairs Council, Islamic Circle of North America Council for Social Justice, MPower Change, Justice for Muslims Collective, and Partnership for Advancement of New Americans filed. (Distributed) |
Brief amici curiae of Labor Organizations filed. (Distributed) |
Brief amici curiae of National Immigrant Justice Center and The American Immigration Lawyers Association filed. (Distributed) |
Brief amici curiae of National League of Cities, et al. filed. (Distributed) |
Motion of Becket Fund for Religious Liberty in support of neither party for enlargement of time for oral argument and for leave to participate in oral argument as amicus curiae and for divided argument filed. |
Brief amici curiae of Association of American Medical Colleges and Others filed. (Distributed) |
Brief amici curiae of 36 Appellate Lawyers filed. (Distributed) |
Brief amici curiae of Former Executive Branch Officials filed. (Distributed) |
Brief amici curiae of Immigration Equality and Others In Support of Respondents filed. (Distributed) |
Brief amici curiae of William Webster, et al. filed. (Distributed) |
Brief amicus curiae of The Roderick & Solange MacArthur Justice Center filed. (Corrected brief to be submitted and filed). |
Brief amicus curiae of The Roderick & Solange MacArthur Justice Center filed. (Distributed) |
Brief amicus curiae of The Cato Institute filed. (Distributed) |
Brief amicus curiae of Khizr Khan filed. (Distributed) |
Brief of respondents State of Hawaii, et al. filed. (Distributed) |
Brief amicus curiae of Becket Fund for Religious Liberty in Support of Neither Party filed. (Distributed) |
Brief amici curiae of Scholars of Mormon History and Law in Support of Neither Party filed. (Distributed) |
CIRCULATED |
Brief amicus curiae of Alliance Defending Freedom in support of neither party filed. |
Brief amicus curiae of Center for Constitutional Jurisprudence filed. |
Brief amici curiae of States of Texas, et al. filed. |
Brief amicus curiae of American Center for Law and Justice filed. |
Brief amicus curiae of Immigration Reform Law Institute filed. |
Brief amicus curiae of Eagle Forum Education & Legal Defense Fund filed. |
Brief amicus curiae of Zionist Organization of America filed. |
Brief amici curiae of Citizens United, et al. filed. |
Letter of respondents State of Hawaii, et al. filed. (Distributed) |
Brief amicus curiae of American Civil Rights Union filed. |
Brief amicus curiae of Southeastern Legal Foundation filed. |
Brief amici curiae of National Security Experts filed. |
Brief amicus curiae of Liberty, Life, and Law Foundation filed. |
Brief amicus curiae of Foundation for Moral Law filed. |
SET FOR ARGUMENT on Wednesday, April 25, 2018. |
Brief amici curiae of Christian Legal Society and National Association of Evangelicals in support of neither party filed. |
Brief amicus curiae of Great Lakes Justice Center filed. |
Joint appendix filed. |
Brief of petitioners Donald J. Trump, President of the United States, et al. filed. |
Application (17A824) granted by Justice Kennedy for leave to file the brief of petitioners, brief of respondents, and the reply brief on the merits in excess of the word limits. |
Application (17A824) for leave to file the brief of petitioners, brief of respondents, and the reply brief on the merits in excess of the word limits, submitted to Justice Kennedy. |
Blanket Consent filed by Petitioners, Donald J. Trump, President of the United States, et al.. |
Petition GRANTED. In addition to the questions presented by the petition, the parties are directed to brief and argue Question 3 presented by the brief in opposition. |
Reply of petitioner Donald J. Trump, President of the United States, et al. filed. (Distributed) |
Brief of respondents State of Hawaii, et al. in opposition filed. (Distributed) |
DISTRIBUTED for Conference of 1/19/2018. |
Petition for a writ of certiorari filed. (Response due February 5, 2018) |
Application (17A550) referred to the Court. |
Application (17A550) granted by the Court. The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court’s October 20, 2017 order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment. In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch. Justice Ginsburg and Justice Sotomayor would deny the application. |
Reply of applicants Donald J. Trump, President of the United States, et al. filed. |
Response to application from respondents Hawaii, et al. filed. |
Motion (17A550) for leave to file amici brief and motion for leave to file brief in compliance with Rule 33.2 filed by the State of New York, et al. |
Motion (17A550) for leave to file amici brief and motion for leave to file brief in compliance with Rule 33.2 filed by the State of Texas, et al. |
Response to application due on or before 12 p.m., Tuesday, November 28, 2017. |
Application (17A550) for a stay pending appeal, submitted to Justice Kennedy. |
Prior History
- Hawaii v. Trump, No. 17-17168 (9th Cir. Dec. 22, 2017)
- State of Hawaii v. Trump, No. 1:2017cv00050 (D. Haw. Jul. 06, 2017)
President Trump's issuance of Proclamation 9645 entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats" violated the Immigration and Nationality Act (INA) and exceeded the scope of his delegated authority. The Ninth Circuit affirmed the district court's order enjoining enforcement of the Proclamation's section 2(a), (b), (c), (e), (g), and (h), holding that the Government's interpretation of 8 U.S.C. 1182(f) not only upended the carefully crafted immigration scheme Congress has embodied in the INA, but it deviated from the text of the statute, legislative history, and prior executive practice as well; the President did not satisfy the critical prerequisite Congress attached to his suspension authority: Before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be detrimental to the interests of the United States; the Proclamation conflicted with the INA's prohibition on nationality-based discrimination in the issuance of immigrant visas; and the President was without a separate source of constitutional authority to issue the Proclamation. However, the panel limited the scope of the preliminary injunction to foreign nationals who have a bona fide relationship with a person or entity in the United States.