In a 5-4 decision issued on Tuesday, June 26, 2018, the US Supreme Court upheld the president’s broad statutory authority to suspend the issuance of visas to nationals of certain countries in the interests of national security. Finding the September 24, 2017, Proclamation 9645 (“Proclamation”) to be neutral on its face, the Court rejected the arguments of the State of Hawaii that the ban was a thinly veiled attempt to ban Muslims from the United States in violation of the Establishment Clause of the US Constitution and the Immigration and Nationality Act (“INA”).
"By its plain language, [the INA] grants the president broad discretion to suspend the entry of aliens into the United States," the majority opinion, authored by Chief Justice John Roberts, states. "The president lawfully exercised that discretion based on his findings—following a worldwide, multiagency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language."
The third in a series of travel bans dating back to January 27, 2017, the Proclamation barred entry by nationals of eight countries—Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia—and suspended all refugee admissions. Chad was removed from the list in April 2018, after authorities there were deemed to be cooperating with the Trump administration’s security requirements. The ban had been preliminarily enjoined by the US District Court in Hawaii and the preliminary injunction was upheld by the Court of Appeals for the Ninth Circuit. The Ninth Circuit then issued a partial stay, allowing the ban to proceed for those individuals lacking a “credible bona fide relationship” with the United States.
Worldwide Multi-Agency Security Review
Shortly after taking office in January 2017, President Trump signed Executive Order No. 13769, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO-1). EO-1 directed a multi-agency, worldwide security review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. Pending completion of the review, EO-1 suspended for 90 days the entry of citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The State of Washington, among others, challenged the legal authority of the president to issue EO-1, resulting in a temporary restraining order (“TRO”) by the District Court for the Western District of Washington. The Ninth Circuit declined the government’s request to stay the TRO.
In March, 2017, the president rescinded EO-1 and replaced it with Executive Order No. 13780 (EO-2). EO-2 again directed a worldwide security review and a temporary ban on the entry of citizens from six counties—Iran, Libya, Somalia, Sudan, Syria and Yemen—each of which, according to the order, “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” EO-2 was immediately challenged in court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and the respective Courts of Appeals upheld those injunctions. The Supreme Court granted certiorari and stayed the injunctions, allowing EO-2 to take effect. The restrictions of EO-2 expired before the Supreme Court could act, so the Court vacated the lower court decisions as moot. The Proclamation, which is the subject of the Supreme Court decision, followed in September 2017 after completion of the worldwide review.
The statutory authority at issue, 8 USC 1182(f), reads as follows:
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 re¬strictions he may deem to be appropriate.
In rejecting the plaintiffs’ argument that section 1182(f) “confers only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct” and their assertion that the Proclamation conflicts with 8 USC 1152(a)(1)(A), which prohibits discrimination on the basis of nationality in the issuance of immigrant visas, the Court stated,
By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.
The majority was clearly impressed with the extensive worldwide, multi-agency review that gave rise to the travel restrictions included in EO-2, and the opinion states that the “12-page Proclamation—which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under §1182(f).”
The President’s Tweets Were Beside the Point
Having found the Proclamation to have been squarely within the scope of the president’s statutory authority, the majority turned to the plaintiffs’ constitutional claims. The plaintiffs argued that, by singling out Muslims for the ban, the Proclamation violates the Establishment Clause of the First Amendment, which Supreme Court precedent recognizes as meaning that one religious denomination cannot be officially preferred over another. At the heart of the plaintiffs’ case is a series of statements by the president and his advisers that have raised questions about the real motivation for the travel ban. The Court spent little time on that argument:
But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.
Instead, applying the rational basis standard of review, the Court found that the Proclamation, facially neutral with regard to religion, was informed by a multi-agency review that was more than sufficient to “support the government’s claim of a legitimate national security interest.” In addition, the facts that three Muslim countries were removed from the ban and others will be if they cooperate, that there are significant exceptions for various categories of foreign nationals, and that waivers are available where visa denial would pose a hardship helped to further persuade the majority that the Proclamation is lawful.
On the Horizon
For the time being, and until satisfactory cooperation with US security requirements is found, travel restrictions will remain in place for certain nationals of Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia. The proclamation permits students and exchange visitors from Iran, while restricting business and tourist nonimmigrant entry only for nationals of Libya and Yemen, and imposes no restrictions on nonimmigrant entry for Somali nationals. With respect to Venezuela, the ban only affects travel by certain government officials.