The U.S. Supreme Court, on June 26, 2018, upheld President Trump’s Proclamation on the Travel Ban in Trump v. Hawaii. As previously blogged, the Proclamation was issued by President Trump on Sept. 24, 2018. It was then blocked by the District Court, after which the Ninth Circuit partially stayed, and on Dec. 4, 2017, the Supreme Court issued an order allowing the Proclamation to go fully into effect.

Chief Justice Roberts delivered the opinion of the Court, with Justice Kennedy and Justice Thomas concurring. Justice Breyer dissented, joined by Justice Kagan, while Justice Sotomayor dissented, joined by Justice Ginsburg. Chief Justice Roberts begins by reiterating the timeline for the Proclamation, as well as the two previous Executive Orders on the Travel Ban. A summary of the two Executive Orders can be found in our blog posts “Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals” and “New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries.”

Chief Justice Roberts discusses the two issues at hand: 1) whether the president has the executive power to limit the entry of certain individuals, and 2) whether this Proclamation in particular violated the Establishment Clause. The Supreme Court held that 1) the president does have this broad authority and that the issuance of the Proclamation (as well as its contents) are in his authority, and 2) the contents of the Proclamation do not violate the Establishment Clause, as the plaintiffs have alleged. The discussion is below on the two issues.

First Issue: Does the President have the authority to issue the Proclamation?

Chief Justice Roberts addresses the plaintiffs’ argument that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), and that the president does not have the authority to issue the Proclamation under the INA because the authority only allows a halt of entry for those entering to engage in harmful conduct and that it discriminates on the basis of nationality in the issuance of immigrant visas.

The Court addresses these arguments by citing Section 1182(f) of the INA, where it 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.

Chief Justice Roberts analyzes the Proclamation’s contents and writes in the opinion that President Trump met all the requirements as set forth. He cites the contents of the Proclamation, including the thorough review of the countries, the focus on exchange of information between countries, and also the review period that has allowed for countries to be removed from the list once they were deemed compliant. The Court cites examples of previous administrations that also issued Proclamations to suspend entry into the United States for certain individuals.

The plaintiffs also argued that Section 1182(f) does not give the president the authority to surpass congressional policies that have been laid out, specifically the vetting system designed by Congress to determine admissibility, and also the information sharing system created through the Visa Waiver Program. The Court addresses both issues and notes that the vetting system is only enhanced by the Proclamation and that the focus of the Proclamation is on the foreign country’s ability to provide the information needed. Second, the Visa Waiver Program is in place for countries that have already fulfilled the information exchange process, and that it does not necessarily apply here. For this sub-argument, the Court’s opinion is that the Proclamation only supplements the efforts of Congress.  In addition, the Court cites to historical practice of instances where Proclamations have been issued to limit the entry of certain groups of people.

Thus, the holding on the first issue is that the Proclamation is squarely within the scope of President Trump’s authority under the INA.

Second Issue: Does the Proclamation violate the Establishment Clause of the First Amendment?

The plaintiffs also claim that the Proclamation violates the Establishment Clause of the First Amendment because it targets Muslims/those in the Islamic faith. The Court looks at this issue and discusses statements made by the president and his advisors to understand the intent and rhetoric behind the Proclamation. The Court reviews the timeline and statements made by the president and his advisors and concludes “the President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.”  In considering the statements made by the president, the Court also considers the president’s authority. In this particular case, the Court finds that the Proclamation has a legitimate purpose – it prevents entry of nationals who cannot be adequately vetted and induces other countries to improve their practices. Because the Court does not find any text on religion within the Proclamation and it notes that the policy only covers eight percent of the world’s Muslim population, the Court does not find a violation of the Establishment Clause of the First Amendment.

In concluding the opinion, Chief Justice Roberts writes that the activities surrounding the Travel Bans, starting with the Executive Orders, have already supported the fact that it was issued in response to a legitimate national security interest. First, three Muslim-majority countries have already been removed from the list of covered countries. Second, the Proclamation includes text that will provide exceptions to certain individuals from the listed countries such as permitting students and exchange visitors from Iran). Third, the Proclamation includes the ability to apply for a waiver.