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Argument preview: Travel-ban challenge returns

On Wednesday, April 25, the justices will take the bench for the final oral argument scheduled for this term. Fittingly, the case on their docket that day is one of the biggest of the year: Trump v. Hawaii, the challenge to the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries. The government contends that a ruling for the challengers would “hamstring” the president’s ability to conduct foreign relations and protect the national security; the challengers counter that allowing the so-called “travel ban” to stand will not only preclude over 150 million people, overwhelmingly Muslim, from coming to the United States, but it will also consolidate “breathtakingly vast” power in the executive branch.

The focus of the case is the order that Trump issued in September 2017, which limited travel from eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. That order followed two orders that are not directly before the Supreme Court next week, but that are also likely to play important roles in the oral argument.

The first order, issued on January 27, 2017, imposed a 90-day ban on the entry of citizens from seven countries, all of which have large Muslim majorities: Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen. It also put a 120-day hold on the admission of refugees, although it contained an exception for refugees who were religious minorities in their home countries. A federal court in Washington state blocked the Trump administration from enforcing the order, and the U.S. Court of Appeals for the 9th Circuit rejected the government’s request to step in.

On March 6, 2017, the government issued a new order that was similar, although not identical, to the January 27 order: It imposed a 90-day ban on the entry of citizens from six of the seven Muslim-majority countries included in the January order (Iraq was removed from the list) and suspended the entry of refugees, this time without any exceptions for religious minorities. After lower courts barred the federal government from enforcing that order as well, the Trump administration went to the Supreme Court, which agreed in June 2017 to weigh in. The justices scheduled oral argument for early October, and they allowed the government to implement the ban –at least for would-be travelers who didn’t already have some connection to the United States – until the court could rule on the dispute. But the justices dismissed that case from their argument calendar in late September, after Trump issued the current version of the order.

The challengers in this case – Hawaii, the Muslim Association of Hawaii and its imam, Dr. Ismail Elshikh, and two unnamed plaintiffs – returned to the lower courts to challenge the September 2017 order, arguing that – just like its predecessors – it violated both federal law and the U.S. Constitution. The Supreme Court allowed the government to implement the September 2017 order while it appealed lower-court rulings in favor of the challengers, and in January of this year the court announced that it would take on the case.

There are two main issues before the court. The first is whether the September 2017 order exceeds the president’s power over immigration. The federal government insists that it does not. Under the Constitution and federal immigration laws, it argues, the president has “broad authority” to suspend or restrict the entry of travelers from other countries into the United States when he believes it is in the country’s best interest to do so. That is exactly what Trump did here, the government explains, after several government agencies conducted a “worldwide review” to determine whether other countries were providing the U.S. government with enough information to determine whether their citizens should be allowed to come to the United States. Because the eight countries included in the September 2017 order either “do not share adequate information with the United States” or “present other risk factors,” the government continues, the president concluded that allowing citizens from those countries to enter the United States “would be detrimental to the interests of the United States.”

The challengers concede that Congress gave the president power to block noncitizens from entering the United States when he believes that allowing them to come here would harm the country’s interests. However, they caution, Congress did not authorize him to undermine the entire statutory scheme – which is precisely what the September 2017 order does. For example, although the immigration laws give the president the authority to temporarily block a “class of aliens” from entering the United States when it would harm the country’s interests, they argue, the September 2017 order “grossly exceeds those limits” because it bans a “sprawling group of 150 million aliens who share nothing in common but nationality and whom the Government can (and in many instances still does) safely admit” – and it does so indefinitely. Prohibiting the citizens of entire countries from coming to the United States because their governments have not cooperated with the United States is also, the challengers point out, inconsistent with Congress’ creation of the visa waiver program, which allows the citizens of some countries to travel to the United States for up to 90 days without having to obtain a visa; “Congress weighed precisely the same consideration in enacting” that program, the challengers argue, and “judged that it does not warrant excluding a country’s nationals from the United States.”

The federal government also pushes back against the challengers’ contention (with which the 9th Circuit agreed) that the September 2017 order violates the ban on discrimination based on nationality for visas to immigrate to the United States. Federal immigration law, the federal government stresses, does not require the government to issue visas to noncitizens who are ineligible to receive them based on some other part of the immigration laws. Such an interpretation, the government adds, would have meant that actions taken by Presidents Jimmy Carter and Ronald Reagan during diplomatic crises – Carter denied visas to citizens of Iran, while Reagan barred Cuban citizens from immigrating to the United States – would also have been illegal.

The second issue before the court is whether the September 2017 order violates the Constitution’s establishment clause, which (among other things) bars the government from favoring one religion over another. Arguing that it does, the challengers point to statements by then-candidate Trump, as well as comments by the president after he took office, calling for a ban on the entry of Muslims into the United States. Those comments were followed up, the challengers suggest, by the first two orders, which targeted countries with “overwhelmingly Muslim populations”; the president even acknowledged that the first order’s exception for religious minorities was intended to help Christians. The September 2017 order now before the court is, the challengers assert, simply a “direct descendant” of the January 2017 and March 2017 orders; the only real difference is that the most recent version also imposes “token restrictions” on two countries – Venezuela and North Korea – whose populations do not include large numbers of Muslims. When all of this evidence is taken together, the challengers maintain, the only possible conclusion that can be drawn is that the September 2017 order was issued “for the unconstitutional purpose of excluding Muslims from the United States.”

The federal government urges the court to keep its focus on the September 2017 order, arguing that it does not violate the establishment clause. All that the Supreme Court caselaw requires is that the government have a “facially legitimate and bona fide reason” for the order, the government contends. And here it does: The president based the order directly on his “national-security and foreign-policy judgments,” which hinge on findings by U.S. government agencies that the countries listed in the order either do not provide sufficient information to the U.S. government or present other risks. The lower courts should not have considered the earlier orders or the president’s remarks about banning Muslims from the United States, and the Supreme Court should decline to engage in “judicial psychoanalysis of a drafter’s heart of hearts,” the government concludes.

In addition to the two primary issues in the case, the justices also agreed to tackle two other questions. The first is whether the case is justiciable – that is, whether federal courts can consider the issues at all. The federal government urges the court to hold that it is not, which would obviate the need for the court to move on to the merits of the challengers’ claims. The claims alleging that the January 2017 order exceeds the president’s powers under federal immigration law are not, the government contends, a proper topic for courts to review because, as a general rule, courts should not consider decisions by the president and Congress to block noncitizens from entering the country. And although the Supreme Court has in some cases reviewed constitutional claims when a U.S. citizen argued that keeping a noncitizen out of the country would violate the U.S. citizen’s rights, that is not the scenario before the court now. Here, the government asserts, Hawaii and the other challengers claim only that they were injured by the denial of entry to other people; their own constitutional rights were not violated.

The challengers respond that federal courts can and should review their claims. First, they contend, the Supreme Court’s cases and federal immigration law only prohibit courts from “second-guessing Congress’s policy choices or individualized exercises of” discretion by the president and the executive branch. They do not bar courts from stepping in to enforce the very limits that Congress has imposed on the president when it comes to immigration. Second, they continue, courts can review their challenge to the constitutionality of the September 2017 order because it does violate their own constitutional rights: It generally “deprives every citizen of her right to a government free from the establishment of a disfavored faith” and it specifically “denigrates” their religion.

The fourth and final issue in the case goes to the relief that the district court ordered, which barred the Trump administration from implementing and enforcing the ban anywhere in the world. The government argues that such an order sweeps far too broadly. Even if the challengers are correct, the government contends, the lower court’s order should have focused only on remedies for the challengers who are actually before the court. For example, the government suggests, if the injury to the challengers stems from specific individuals not being allowed to enter the United States because of the September 2017 order, those people should be permitted to come to the United States, but the government should be allowed to enforce the order as to everyone else.

Hawaii counters that the president’s September 2017 order must be blocked nationwide. Any other solution, it argues, would result in “the splintering of immigration enforcement” and raise the possibility that the challengers would not receive “complete relief.”

Reflecting the deep public interest in the case and the travel ban more generally, the justices received a wide range of “friend of the court” briefs – submitted by everyone from Mormon history and legal scholars to Khizr Khan, the Gold Star father who criticized Trump at the 2016 Democratic National Convention, and a group of U.S. art museums. The court also announced last week that it would make the audio of the oral argument available shortly after the argument on Wednesday, rather than waiting until Friday, when the audio is normally released. But although we may have a good sense of where the justices are heading after next week’s oral argument, we almost certainly will have to wait until late June for the court’s ruling.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Argument preview: Travel-ban challenge returns, SCOTUSblog (Apr. 19, 2018, 4:57 PM),