Trump v. Hawaii is one of the most covered cases this judicial term, surpassed perhaps only by Masterpiece. Trump v. Hawaii involves the President’s most recent travel ban, issued on September 24, 2017, which is the third of the travel ban Proclamations (EO-3). EO-3 restricted the entry of all nationals as immigrants and non-immigrants of Chad, Iran, Libya, North Korea, Syria, and Yemen, the entry of Somalian nationals as immigrants, and ordered nonimmigrants’ applications for entry to be highly scrutinized. Various Venezuelan government officials and their families as non-immigrants’ entry was also suspended. The Ninth Court struck it down, and the Supreme Court granted review. The questions posed are:
- Are the plaintiffs’ claims challenging the president’s authority to issue the Proclamation reviewable (“justiciable”) in federal court?
- Does the president have the statutory authority to issue the Proclamation?
- Is the global injunction barring enforcement of parts of the Proclamation impermissibly overbroad?
- Does the Proclamation violate the Establishment Clause of the Constitution?
As most coverage is on Questions 2 and 4, those will be the focus of this article.
The President does have the statutory authority to issue the Proclamation. Under 8 U.S.C 1182(f):
Whenever the President finds that the entry of any aliens or 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 non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Hawaii makes numerous arguments that attempt to prove that it does not meet the statute. First, it claims that the ‘period’ must be definite, as it is not set in EO-3. This argument should be rejected. The period’s length is at the discretion of the President – it has been deemed necessary by him that this ban is in perpetuity. Therefore, this cannot be challenged. Hawaii also suggests that, by canon, ‘class’ excludes nationality, as protected by 8 U.S.C 1152(a)(1)(A), “…no person shall receive any preference or priority…in the issuance of an immigrant visa because of the person’s…nationality…” Hawaii suggests rightly that this statute was enacted to prevent national quota systems. However, quotas imply there is no good reason to admit one alien over the other, while Section 1182(f) implies that the class is detrimental to the United States. Therefore, canons fail, causing the nationality inclusion to be legitimate. Hawaii makes a final suggestion that EO-3 gives the president a “line-item veto over the entire immigration code.” Yet, EO-3 is consistent, as shown in 1182(f), with Congress’ intent. The entire Proclamation is consistent with Section 1182(f).
Furthermore, EO-3 is not a violation of the Establishment Clause. Trump offers the argument that this claim should be evaluated under Mandel, which requires the Courts to uphold the Proclamation because it is, “facially legitimate and bona fide”. In EO-3, it was clearly stated the purpose was for national security, which would meet both tests. However, Hawaii suggests the President’s anti-Muslim rhetoric shows that the tests are not met. It would be dangerous to make the logical leap – these two things may correlate, but that may not show intent. Furthermore, the inclusion of other states, such as North Korea, diminish this argument, as well as the inclusion of exceptions common of these Proclamations. Trying to reconstruct his intent in light of these mitigating factors is highly likely to cause error and misguided blame.
However, one of his excluded states should have their ban lifted: Venezuela. While the Government provides legitimate security reasons for other states, citing the lack of minimum baseline information needed to determine the admissibility of aliens, it does not provide why government officials may be detrimental to the interests of the United States, only saying they are responsible for making the United States use other methods to access needed information.
The Ninth Circuit’s decision should be reversed.