Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Donald J. Trump, President of the United States, ETAL VS Respondent: Hawaii. ET AL
Court Name: Supreme Court of United States Judge(s): Chief Roberts Title: Donald J. Trump, President of the United States, ETAL vs Hawaii. ET AL Case No.: 585 U.S. (2018) Date of Judgment:2018-06-26 Reported As: 2018 P.S.C. 1475 Result: N/A
JUDGMENT
JUDGMENT Chief Justice Roberts delivered the opinion of the Court. Under the Immigration and Nationailty foreign nationals seeking entry into the United statutes undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens whenever he finds that their entry "would be detrimental to the interests of the United States." 8 U.S.C. 1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No, 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment. I A Shortly after taking office, President Trump signed Executive Order No, 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg.. 8977 (2017) (EO-1). EO-1 directed the Secretary of Homeland Security to conduct a review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. 3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries-- Iran, Iraq, Fibya, Somalia, Sudan, Syria, and Yemen-- that had been previously identified by Congress or prior administrations as posing heightened terrorism risks. 3(c). The District Court
---
## Page 2
for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government's request to stay that order. Washington v. ;Trump, 847 r. 3d 1151 (2017) (per curiam). In response, the President revoked EO-1, replacing it with Executive Order No, 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO-2). Citing investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, EO-2 also temporarily restricted the entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO-1: Iran, Fibya, Somalia, Sudan, Syria, and Yemen. 2(c), 3(a). The order explained that those countries had been selected because each "is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones". 1(d). The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review. These interim measures were 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, albeit on different grounds. International Refugee Assistance Project (IRAP) v. Trump, 857 F. 3d 554 (CA4 2017); Hawaii v. Trump, 859 F. 3d 741 (CA9 2017) (per. curiam). This Court granted certiorari and stayed the injunctions -- allowing the, entry suspension to go into effect -- with respect to foreign nationals who lacked a "credible claim of a bona fide relationship" with a person or entity in the United. States. Trump v. IRAP, 582 U. S., (2017) (per curiam) (slip op., at 12). The temporary restrictions in EO- 2 expired before this Court took any action, and we vacated the lower Court decisions as moot. Trump v. IRAP, 583 U.S. (2017); Trump v. Hawaii, 583 U.S. T (2017). On September 24, 2017, after completion of the worldwide review, the President issued the Proclamation before us -- Proclamation No, 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. 82 Fed. Reg. 45161. The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present "public safety threats." 1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. The Proclamation described how foreign states were selected for inclusion based on the review undertaken pursuant to EO-2. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and several intelligence agencies, developed a "baseline" for the information required from foreign governments to confirm the identity of individuals seeking entry into the United States, and to determine whether those individuals pose a security threat. 1(c). The baseline included three components. The first, "identity-management information", focused on whether a foreign government ensures the integrity of travel documents by issuing electronic passports, reporting lost or stolen passports, and making available additional identity- related information. Second, the agencies considered the extent to which the country discloses information on criminal history and suspected terrorist links, provides travel document exemplars, and facilitates the' U.S. Government's receipt .of information about airline passengers and crews travelling to the United States. Finally, the agencies weighed various indicators of national security risk; including whether the foreign state is a known or potential terrorist safe haven and whether it regularly declines to receive returning nationals following final orders of removal from the United States. Ibid. DHS collected and evaluated data regarding all foreign governments. 1(d). It identified 16 countries as having deficient information-sharing practices and presenting national security concerns, and another 31 countries as "at risk" of similarly failing to meet the baseline. 1(e). The
---
## Page 3
State Department then undertook diplomatic efforts over a 50-day period to encourage all foreign governments to improve their practices. 1(f). As a result of that effort, numerous countries provided DHS with travel document exemplars and agreed to share information on known or suspected terrorists. /bid. Following the 50-day period, the Acting Secretary of Homeland Security concluded that eight countries -- Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. -- remained deficient in terms of their risk profile and willingness provide requested information. The Acting Secretary recommended that, the President impose entry restrictions on certain nationals from all of those countries except Iraq. 1 (g), (h). She also concluded that although Somalia generally satisfied the information sharing component of the baseline standards, its "identity-management deficiencies" and "significant terrorist presence" presented special circumstances justifying additional limitations. She therefore recommended entry limitations for certain nationals of that country. 1(i). As for Iraq, the Acting Secretary found that entry limitations on its nationals were not warranted given the close cooperative relationship between the U.S. and Iraqi Governments and Iraq's commitment to combating ISIS. 1(g). After consulting with multiple Cabinet members and other officials, the President adopted the Acting Secretary's recommendations and issued the Proclamation. Invoking his authority under 8 U.S.C. 1182(f) and 1185(a), the' President determined that certain entry restrictions were necessary to "prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information"; "elicit improved identity-management and information-sharing protocols and practices from foreign governments"; and otherwise "advance [the] foreign policy, national security, and counterterrorism objectives" of the United States. Proclamation 1(h). The President explained that these restrictions would be the "most likely to encourage cooperation" while "protecting] the United States until such time as improvements occur." Ibid. The Proclamation imposed a range of restrictions that vary based on the "distinct circumstances" in each of the eight countries. Ibid. For countries that do not cooperate with the United States in identifying security risks (Iran, North Korea, and Syria), the Proclamation suspends entry of all nationals, except for Iranians seeking nonimmigrant student and exchange-visitor visas. 2(b)(ii), (d)(ii), (e)(ii). For countries that have information-sharing deficiencies but are nonetheless "valuable counterterrorism partner[s]" (Chad, Libya, and Yemen), it restricts entry of nationals seeking immigrant visas and nonimmigrant business or tourist visas. 2(a)(i), (c)(i), (g)(i). Because Somalia generally satisfies the baseline standards but was found to present special risk factors, the Proclamation suspends entry of nationals seeking immigrant visas and requires additional scrutiny of nationals seeking nonimmigrant visas. 2(h)(ii). And for Venezuela, which refuses to cooperate in information sharing but for which alternative means are available to identify its nationals, the Proclamation limits entry only of certain government officials and their family members on nonimmigrant business or tourist visas. 2(f)(ii). The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum. 3(b). It also provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. 3(c)(i); see also 3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). The Proclamation further directs DHS to assess on a continuing basis whether entry restrictions should be modified or continued, and to report to the President every 180 days. 4. Upon completion of the first such review period, the President, on the recommendation of the Secretary of Homeland Security, determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Presidential Proclamation No 9723, 83 Fed. Reg. 15937 (2018).
---
## Page 4
B Plaintiffs in this case are the State of Hawaii, three individuals (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii. The State operates the University of Hawaii system, which recruits students and faculty from the designated countries. The three individual plaintiffs are U.S. citizens or lawful permanent residents who have relatives from Iran, Syria, and Yemen applying for' immigrant or nonimmigrant visas. The Association is a non-profit organization that operates a mosque in Hawaii. Plaintiffs challenged the Proclamation--except as applied to North Korea and Venezuela--on several grounds. As relevant here, they argued that the Proclamation contravenes provisions in the Immigration and Nationality Act (INA), 66 Stat. 187, as amended. Plaintiffs further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to national security but by animus toward IsIam. The District Court granted a nationwide preliminary injunction barring enforcement of the entry restrictions. The Court concluded that the Proclamation violated two provisions of the INA: 1182(f), because the President did not make sufficient findings that the entry of the covered foreign nationals would be detrimental to the national interest, and 1152(a)(1)(A), because the policy discrimi-nates against immigrant visa applicants on the basis of nationality. 265 F. Supp. 3d 1140, 1155-1159 (Haw. 2017). The Government requested expedited briefing and sought a stay pending appeal. The Court of Appeals for the Ninth Circuit granted a partial stay, permitting enforcement of the Proclamation with respect to foreign nationals who lack a bona fide relationship with the United States. This Court then stayed the injunction in full pending disposition of the Government's appeal. 583 U.S. (2017). The Court of Appeals affirmed. The Court first held that the Proclamation exceeds. the President's authority under 1182(f). In its view, that provision authorizes only a "temporary" suspension of entry in response to "exigencies" that "Congress would be ill-equipped to address." 878 F. 3d 662, 684, 688 (2017). The Court further reasoned that the Proclamation "conflicts with the INA's finely reticulated regulatory scheme" by addressing "matters of immigration already passed upon by Congress." Id., at 685, 690. The Ninth Circuit then turned to 1152(a)(1)(A) and determined that the entry restrictions also contravene the prohibition on nationality-based discrimination in the issuance of immigrant visas. The Court did not reach plaintiffs' Establishment Clause claim. We granted certiorari. 583 U.S. (2018). Before addressing the merits of plaintiffs' statutory claims, we consider whether we have authority to do so. The Government argues that plaintiffs' challenge to the Proclamation under the INA is not justiciable. Relying on the doctrine of consular non-reviewability, the Government contends that because aliens have no "claim of right" to enter the United States, and because exclusion of aliens is "a fundamental act of sovereignty" by the political branches, review of an exclusion decision "is not within the province of any Court, unless expressly authorized by law." United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542- 543 (1950). According to the Government, that principle barring review is reflected in the INA, which sets forth a comprehensive framework for review of orders of removal, but authorizes judicial review only for aliens physically present in the United States. See Brief for Petitioners 19 20 (citing 8 U.S.C. 1252). The justiciability of plaintiffs' challenge under the INA presents a difficult question. The Government made similar arguments that no judicial review was available in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993). The Court in that case, however, went on to consider on the merits a statutory claim like the one before us without addressing the issue of reviewability. The Government does not argue that the doctrine of consular non-reviewability goes to the Court's jurisdiction, see Tr. of Oral Arg. 13, nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs' claims, see Sebelius v. Auburn Regional Medical Center, 568
---
## Page 5
U.S. 145, 153 (2013) (requiring Congress to "clearly state[]" that a statutory provision is jurisdictional). As a result, we may assume without deciding that plaintiffs' statutory claims are reviewable, notwithstanding consular non-reviewability or any other statutory non-reviewability issue, and we proceed on that basis. III The INA establishes numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U.S.C. 1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy grounds). Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, 1182(f), enables the President to "suspend the entry of all aliens or any class of aliens" whenever he "finds" that their entry "would be detrimental to the interests of the United States." Plaintiffs argue that the Proclamation is not a valid exercise of the President's authority under the INA. In their view, 1182(f) confers only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct. They also assert that the Proclamation violates another provision of the INA-8 U.S.C. 1152(a)(1)(A)--because it discriminates on the basis of nationality in the issuance of immigrant visas. 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. A The text of 1182(f) 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 non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." By its terms, 1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry ("[w]henever [he] finds that the entry" of aliens "would be detrimental" to the national interest); whose entry to suspend ("all aliens or any class of aliens"); for how long ("for such period as he shall deem necessary"); and on what conditions ("any restrictions he may deem to be appropriate"). It is therefore unsurprising that we have previously observed that 1182(f, vests the President with "ample power" to impose entr), restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U.S., at 187 (finding it "perfectly clear" that the President could "establish a naval blockade" to prevent illegal migrants from entering the United States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the "sweeping proclamation power" in 1182(f) as enabling the President to supplement the other grounds of inadmissibility in the INA). The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in 1182(f) is that the President "find[]" that the entry of the covered aliens "would be detrimental to the interests of the United States.". The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country's compliance with the information and risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments--several of which are state sponsors of terrorism--deprive the1
---
## Page 6
Government of "sufficient information to assess the risks [those countries' nationals] pose to the United States." Proclamation 1(h)(i). Based on that review, the President found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information-- both to protect national security and public safety, and to induce improvement by their home countries. The Proclamation therefore "crafttbd] . . . country-specific restrictions that would be most likely to encourage cooperation given each country's distinct circumstances," while securing the Nation "until such time as improvements occur." Ibid. Plaintiffs believe that these findings are insufficient. They argue, as an initial matter, that the Proclamation fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk. And they further discount the- President's stated concern about deficient vetting because the Proclamation allows many aliens from the designated countries to enter on nonimmigrant visas. Such arguments are grounded on the premise that 1182(f) not only requires the President to make a finding that entry "would be detrimental to the interests of the United States," but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable See Webster v. Doe, 486 U.S. 592, 600 (1988) (concluding that a statute authorizing the CIA Director to terminated an employee when the Director "shall deem such termination necessary or advisable in the interests of the United States" forecloses "any meaningful judicial standard of review"). But even assuming that some form of review is appropriate, plaintiffs' attacks on the sufficiency of the President's findings cannot be sustained. 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). Contrast Presidential Proclamation No, 6958, 3 CFR 133 (1996) (President Clinton) (explaining in one sentence why suspending entry of members of the Sudanese government and armed forces "is in the foreign policy interests of the United States"); Presidential Proclamation No 4865, 3 CFR 50-51 (1981) (President Reagan) (explaining in five sentences why measures to curtail "the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States" are "necessary"). Moreover, plaintiffs' request for a searching inquiry into the persuasiveness of the President's justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. "Whether the President's chosen method" of addressing perceived risks is justified from a policy perspective is "irrelevant to the scope of his [1182(f)] authority." Sale, 509 U.S., at 187-188. And when the President adopts "a preventive measure ... in the context of international affairs and national security," he is "not required to conclusively link all of the pieces in the puzzle before [Courts] grant weight to [his] empirical conclusions." Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010). The Proclamation also comports with the remaining textual limits in 1182(f). We agree with plaintiffs that the word "suspend" often connotes a "defer[ral] till later," Webster's Third New International Dictionary 2303 (1966). But that does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions. Section 1182(f) authorizes the President to suspend entry "for such period as he shall deem necessary." It follows that when a President suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition. See, e.g., Presidential Proclamation No, 5829, 3 CFR 88 (1988) (President Reagan) (suspending the entry of certain Panamanian nationals "until such time as . . . democracy has been restored in Panama"); Presidential Proclamation No, 8693, 3 CFR 86-87 (2011) (President Obama) (suspending the entry of individuals subject to a travel restriction under United A Nations Security Council resolutions "until such time as the Secretary of State determines that [the suspension] is no longer necessary"). In2
---
## Page 7
fact, not one of the 43 suspension orders issued prior to this litigation has specified a precise end date. Like its predecessors, the Proclamation makes clear that its "conditional restrictions" will remain in force only so long as necessary to "address" the identified "inadequacies and risks" within the covered nations. Proclamation Preamble, and 1(h); see 'bid, (explaining that the aim is to "relax[] or remove[]" the entry restrictions "as soon as possible"). To that end, the Proclamation establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated. 4(a), (b). Indeed, after the initial review period, the President determined that Chad had made sufficient improvements to its identity-management protocols, and he accordingly lifted the entry suspension on its nationals. See Proclamation No, 9723, 83 Fed. Reg. 15937. Finally, the Proclamation properly identifies a 'class of aliens"--nationals of select countries--whose entry is suspended. Plaintiffs argue that "class" must refer to a well-defined group of individuals who…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.