Academic journal article Harvard Law Review

First Amendment - Establishment Clause - Judicial Review of Pretext - Trump V. Hawaii

Academic journal article Harvard Law Review

First Amendment - Establishment Clause - Judicial Review of Pretext - Trump V. Hawaii

Article excerpt

As a candidate for President of the United States, Donald Trump "call[ed] for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on." (1) One week after taking office, President Trump issued an executive order suspending the entry of nationals from seven Muslim-majority countries. (2) His objective was to "detect[] individuals with terrorist ties" and people who may "bear hostile attitudes" toward the nation's values. (3) Last Term, in Trump v. Hawaii (4) (the "travel ban case"), the Supreme Court rejected statutory and constitutional challenges to the third iteration of that order. The Court deviated from its usual approach to reviewing claims that a law arises from an unconstitutional motive. What remains unclear is when in the future the Court will take the same approach.

On January 27, 2017, President Trump issued Executive Order 313,769 (EO-1). (5) EO-1 directed the Secretary of Homeland Security to assess the information that foreign governments provided the United States about their nationals. (6) Pending that assessment, EO-1 suspended for ninety days the entry of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. (7) Challengers to EO-1 moved for a temporary restraining order in the U.S. District Court for the Western District of Washington, claiming that EO-1 violated the Immigration and Nationality Act (8) (INA) and several constitutional provisions. (9) The court granted the motion, (10) and the Ninth Circuit affirmed. (11)

On March 6, 2017, the President replaced EO-1 with Executive Order 13,780 (EO-2). (12) EO-2 suspended the entry of nationals from the same countries except Iraq. (13) Challengers to EO-2 filed for a preliminary injunction in the U.S. District Courts for the Districts of Maryland and Hawaii, claiming that EO-2 violated the INA, the Establishment Clause, and equal protection. (14) The district courts granted the injunction, deciding that plaintiffs were likely to succeed on the merits, and the circuit courts affirmed in part. (15) The U.S. Supreme Court stayed the injunctions "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States" but otherwise left it intact. (16) EO-2 expired before the Court could adjudicate the merits. (17)

On September 24, 2017, President Trump issued Proclamation No. 9,645 (EO-3), (18) the order challenged in the travel ban case. (19) EO-3 restricted the entry of nationals from eight countries--Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen--tailoring those restrictions depending on how each country vetted its nationals. (20) The stated objective of EO-3 was to support "foreign policy, national security, and counterterrorism" by excluding inadequately vetted foreign nationals and motivating other nations to improve their vetting practices. (21) Again, EO-3 was challenged in federal court. Plaintiffs were Hawaii, the Muslim Association of Hawaii, and three individuals. (22) Plaintiffs claimed that EO-3 prevented their affiliates from entering the United States in violation of, among other things, the INA and the Establishment Clause. (23) The U.S. District Court for the District of Hawaii entered a universal preliminary injunction, finding that plaintiffs were likely to succeed on their INA claims. (24) On appeal, the Ninth Circuit mimicked the Supreme Court's decision regarding EO-2: it stayed the injunction except as to foreigners with "a bona fide relationship with a person or entity in the United States." (25)

The Supreme Court reversed. (26) Writing for the Court, Chief Justice Roberts (27) held that the President had not violated the INA and that plaintiffs were not likely to succeed on their claims. (28) The Court first "assum[ed] without deciding" that plaintiffs' statutory claims were justiciable. (29) It then rejected both claims. (30) Plaintiffs' first claim was that the President had exceeded his authority under [section] 1182(f) of the INA, (31) which defines his power to exclude foreign nationals from the United States. …

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