With Justice Kennedy's retirement, the new holder of the balance on the Supreme Court is Chief Justice John Roberts.
The outcome of Trump v. Hawaii, the “travel ban” case, set for oral argument in the Supreme Court on Wednesday, April 25, will undoubtedly be reported as whether President Trump won or lost, or, more pointedly, whether the Islamophobe Trump, won or lost. But the case concerns not only the controversial order by President Trump restricting entry into the United States by aliens from eight countries, it also involves an array of major constitutional issues: ultimate authority over foreign policy and national security, standing to sue, a change in the long-standing constitutional rule of law that aliens have no right to enter the country, the concomitant extension of civil-rights language to issues of alien entry, and the separation of powers — or more accurately, judicial supremacy over the legislative and executive powers.
The case deals with President Trump’s third version of a travel ban, an “Executive Order” and “Proclamation,” which he announced on September 27, 2017. The first two versions had been enjoined and prevented from going into effect by both the Fourth and Ninth Circuits. The third version has been likewise enjoined by both circuits, and the Supreme Court, after suspending the orders of those two courts and allowing the Proclamation to go into effect, will be hearing oral arguments in the Ninth Circuit case, Trump v. Hawaii. The Fourth Circuit decision is stayed pending the resolution of this case.
The first two Proclamations imposed a 90-day suspension on entry into the country by foreign nationals of seven and then six Muslim-majority countries. The current Proclamation and Order, designed to “detect attempted entry into the United States by terrorists or other public-safety threats,” indefinitely suspends entry into the United States from six Muslim-majority countries, Iran, Libya, Syria, Yemen, Somalia, Chad, and two non-Muslim-majority countries, North Korea and Venezuela. Certain exceptions and case-by-case waivers are described. In the Order, twenty pages long, the President makes specific findings concerning both the general purpose of the Order and with respect to each country and states that he has consulted with the secretaries of Homeland Security and State as well as with the Attorney General. Like the two previous Orders, the Order does not include the word “Muslim” or the word “religion,” and it applies to any “foreign national” without any further description, religious or not, of the eight countries.
Like the previous two Orders, the Order was sued upon by plaintiffs whose main claim that it was religious discrimination against Muslims. The state of Hawaii, the Muslim Association of Hawaii, and three individuals, including two anonymous ones, have initiated this suit. They claim that the President exceeded his authority under the Immigration and Nationality Act (INA) and that the Order violates the Establishment Clause because it is in reality an attack on Muslims.
No right of admission for aliens
Unadmitted foreign nationals are the sole subject of the Third Order. Not being citizens or residents, they have no right to admission into the United States. A recent case restates this long-standing constitutional principle — which is never referred-to in today’s disputes about immigration. In Landon v. Plascencia (1982), the Supreme Court held that “an alien seeking initial admission has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” And in US ex rel Knauff v. Shaughnessy (1950), a case emphasized by the Department of Justice (DOJ) in its brief in this case, the Court stated that “an alien who seeks admission to this country may not do so under any claim of right.”
How, then, can aliens seeking entry into the country get into court? The answer is that the district and appeals courts in Trump v. Hawaii, have allowed the plaintiffs a kind of derivative standing to sue.
The state of Hawaii states that it has standing to sue – that is, it states the “harm” that will ensue from the Order – on behalf its public University of Hawaii, which will suffer “proprietary injuries” on account of the Order’s impact on “current and prospective” students, faculty members and even “speakers.” The Muslim Association of Hawaii states that it is suing that it will lose “members, visitors, and revenue.” Three plaintiffs, allowed to be anonymous, state that they will be “impeded from reuniting with close family who have applied for visas.” In its brief, the Department of Justice (DOJ) does not object to the these three “relationships to aliens” as the basis for standing because the Supreme Court has previously ruled in the Fourth and Ninth Circuit cases that such relationships qualified the plaintiffs for standing. As a result and by virtue of their relationships to American citizens or residents, aliens are in court, and the constitutional principle that they have no rights regarding admission is overcome.
Under such a standard, it is hard to imagine who may be denied standing to litigate a case involving foreign policy and national security – or any kind of case. Could Syrian-Americans sue to stop President’s Trump bombing in Syria? Can university students and faculty sue over their “proprietary interests” whenever there is any change in state or federal education law?
This kind of widely conceived “standing” is characteristic of the federal suits against the Trump administration, as in the sanctuary-cities cases, for example.
An unique grant of discretion to the President
Beside the fundamental issues of justiciability and the separation of powers (see below), the case concerns a provision, 8 U.S.C. 1182(f), of the Immigration and Nationalization Act (INA), which give sweeping powers to the President about entry into the United 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.
That is, “whenever” the President “finds” a “detriment to the interests of the United States” concerning “all” or “class of aliens,” he may “by proclamation” for as long as “he shall deem necessary” suspend” their entry into the United States or “impose” such “restrictions” upon entry “he may deem to be appropriate.” So, it’s almost: “whatever,” “whenever.” In its bedrock argument in the case, the Department of Justice argues that the language of 1182(f) “confirms the President’s discretion at every turn.” And DOJ could have added that it would be hard to find a comparable provision anywhere in the United States code.
However, based on its view of the separation of powers, the Ninth Circuit had no problem in turning aside this literally comprehensive grant of authority to the President.
Justiciability and the separation of powers
Under Article I, Section 8, the Constitution, in its only mention of anything having to do with immigration, states that the Congress has the power “to establish an uniform Rule of Naturalization.” In the essential part of its ruling against the Order, the Ninth Circuit held that the Order invaded the legislative power because “control over the entry of aliens is a power within the exclusive power of Congress.”
The Ninth Circuit referred to other sections of the INA dealing with with the “entry of terrorists and persons likely to pose public-safety threats.” For instance, the circuit pointed out that the Congress had enacted a long section of the law (8 USC 1182) dealing with classes of aliens ineligible for admission into the country. Those include aliens “engaged in a terrorist activity,” convicted or have engaged in the crimes of moral turpitude, drug offenses, prostitution, and human trafficking. Thus, the Circuit concluded, Congress has already established the grounds under which entry may be forbidden, and the Order goes beyond those grounds with respect to the eight countries listed in the Order. And in reaching this conclusion, the Circuit glided over the fact that although the Congress had enacted specific subsections of the INA dealing with prohibitions on entry, it had also apparently found it appropriate to enact the equally important provision, 1182(f), dealing with restricting entry as the President “may deem appropriate.”
In addition, the Circuit ruled that the Proclamation and Order, despite its twenty pages in length and specifically stated rationales with respect to each individual country, failed to include “sufficient findings that the entry of certain classes of aliens would be detrimental to the national interests.”
The Circuit then went on to cite the Visa Waiver Program (8 USC 1187), a provision of law allowing for the waiver of visas for 90 days for aliens from certain named countries that have modern data-based systems to verify identities. The Circuit stated that the Program is intended to promote more rather than less travel into the United States, that is, the circuit seemed to say that restricting travel from certain countries conflicts with promoting travel from other countries. The Circuit advised the President he should be promoting travel into the country, and, thus, his Order also “conflict[ed] with the purpose of the Visa Waiver Program.” In short, the Ninth Circuit, on its own initiative, has created the larger principle that aliens from all countries should be treated equally.
Overall, then, the Trump Order “nullifies rather than supplements the existing statutory scheme” of the INA, the Circuit said, and “has overridden Congress’ legislative responses to the same concerns the Proclamation aims to address.” The President violated the separation of powers and lacked “independent constitutional authority to issue the Proclamation.”
That other separation
Yet, the Circuit has nothing to say about another separation of powers, namely, the separation of its own power from both the legislative and the executive powers. The Department of Justice argues that since aliens have no constitutional rights concerning their possible entry into the country, the INA is an unusual area of the law where the Congress has limited judicial review. Congress has specifically enacted restrictions on judicial review of executive branch decisions having to do with the opportunity for aliens to enter or remain in the United States, and “that review is available only to aliens who are physically present in the United States,” not to unadmitted aliens. DOJ goes on to cite and quote four Supreme Court decision, the oldest of which goes back only to 1953, all recognizing the sweeping powers of the legislative and executive branches over entry issues, and likewise recognizing the almost non-existent role for the judiciary. One example is Fiallo v. Bell (1977), in which the Supreme Court said that “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power,” and [s]uch matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”
The plaintiffs, including the state of Hawaii and the Muslim Association of Hawaii, also argue strongly that the purpose of Proclamation and Order was to exclude aliens from admission into the country “based on their religious beliefs,” that is, that President Trump was seeking, so to speak, to “disestablish” the Muslim faith. The Hawaii federal district court had said about the second travel-ban order that it “was issued with a purpose to disfavor Muslims.” The Ninth Circuit, while making clear in dicta that it was sympathetic to this view, decided not to rule on the Establishment Clause claim and stated that its rulings on statutory interpretation and separation of powers were sufficient to decide the case. Consequently, it is almost certain that the Supreme Court will not rule on it.