On 26 June 2017, the Supreme Court of the United States agreed to hear arguments for two cases related to President Trump’s executive order temporarily banning nationals from six countries from travelling to the US and suspending the admission of refugees.
The US is a federal republic. The term “federal government” refers to the national government of the United States, and “federal law” refers to the national law. The US Constitution is the supreme law of the nation, and the Supreme Court of the United States is the final arbiter of constitutionality.
The federal government is composed of three district branches, legislative, executive, and judicial. Each branch has separate and distinct powers and areas of responsibility, which include checks and balances to regulate one another. The President is the head of the executive branch, Congress is the head of the legislative branch, and the Supreme Court is the head of the judicial branch. Unlike in the UK, where Members of Parliament may serve as the heads of government departments, members of Congress who are appointed to head federal agencies must resign from their Congressional position in order to maintain the strict separation of powers between the legislative and executive branches of the federal government.
- Executive order (EO): orders issued by the President, directed towards officers and agencies of the federal government. Executive orders have the full force of law, based on authority derived from a federal statute or the US Constitution itself, and are subject to judicial review.
- District Court: federal trial courts in the United States
- Circuit Court: federal appellate courts in the United States
- Supreme Court: the highest court of appeal in the United States
- US Department of State: the lead foreign affairs agency in the executive branch. Among other things, it is responsible for issuing and adjudicating visas for noncitizens to travel to the US.
- US Refugee Admissions Program (USRAP): a consortium of federal executive agencies and non-profit organizations that identify and admit refugees for resettlement in the United States.
On 27 January 2017, President Trump signed Executive Order 13769 (EO-1), titled Protecting the Nation from Foreign Terrorist Entry into the United States. It suspended the entry of nationals of seven countries (Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen)[i] for 90 days, suspending USRAP for 120 days, suspending the entry of Syrian refugees indefinitely, and reducing the number of refugees to be admitted into the US in 2017 to 50,000.
The order went into immediate effect and caused a great deal of chaos and confusion for travellers at ports of entry to the US and around the world. Many saw it as the manifestation of Trump’s campaign promise to ban Muslims from immigrating or entering the US. It was quickly challenged in court, and a nationwide temporary restraining order (TRO) was issued on 3 February 2017. Rather than continue with the litigation surrounding EO-1, the Government announced that it would revoke EO-1 and issue a new order.
President Trump signed Executive Order 13780 (EO-2) on 6 March 2017. EO-2 has the same title as EO-1, and its directives are largely patterned on EO-1. § 3 of EO-2 outlined possible exceptions and a case-by-case waiver process for nationals of the 6 affected countries. EO-2 also removed much of the content from the previous order that critics had cited as evidence that it targeted Muslims.
Despite these modifications, legal challenges to the new order quickly followed, focused primarily on three parts of the order:
- 2(c): suspended the entry of nationals of six countries (Syria, Iran, Sudan, Libya, Somalia, or Yemen)[ii] for 90 days from the effective date of the order.
- 6(a): suspending the travel of refugees into the US under the USRAP and suspending decisions on applications for refugee status for 120 days after the effective date of this order.
- 6(b): limiting the number of refugees permitted to enter the US in 2017 to 50,000.
The case that is now before the Supreme Court is a consolidation of two of these challenges: Hawaii v Trump 859 F 3d 741 (9th Cir 2017) and Intl Refugee Assistance Project v Trump 857 F 3d 554 (4th Cir 2017) (IRAP). In Hawaii, the state of Hawaii, in its capacity as the operator of a state university system and joined by a state resident with a family member seeking entry to the US, brought suit against the Government in the District Court of Hawaii. They alleged that EO-2 violated of the Establishment Clause and that it did not comply with the Immigration and Nationality Act. In IRAP, three organizations serving or representing Muslim clients or members, as well as six citizens or lawful permanent residents with family members seeking entry to the US, made a similar claim in the District Court of Maryland.
On 15 March 2017, the District Court of Hawaii granted a nationwide TRO, enjoining the Government from enforcing the entirety of § 2 and § 6 of EO-2. The next day, the District Court of Maryland issued a nationwide preliminary injunction barring the enforcement of § 2(c), specifically. On 29 March 2017, the District Court of Hawaii converted its TRO to a preliminary injunction.
The Government appealed both cases. The 4th Circuit Court ruled first on IRAP on 25 May 2017. They largely upheld the order enjoining enforcement of § 2(c), as they felt the claim was likely to succeed on the merits of the Establishment Clause claim. On 12 June 2017, the 9th Circuit Court ruled on Hawaii, narrowing the injunction slightly to apply only to § 2(c), § 6(a), and § 6(b). Again, the Government appealed these decisions by petitioning for a writ of certiorari to the Supreme Court of the United States to hear the case and applying for a stay on the injunctions against EO-2.
In their filing in opposition to the Government’s petition for writ of certiorari, the respondents of IRAP brought up another legal issue. Although the courts had enjoined portions of EO-2, they had not mentioned § 14, which set the effective date of the order as 16 March 2017. The respondents argued that the temporary suspension of entry outlined in § 2(c) would expire on 14 June 2017, despite the fact that it had never been enforced. President Trump then issued a memorandum stating that the effective date of the enjoined provisions of EO-2 would be the date on which the injunctions against them are lifted or stayed.
Article II of the US Constitution outlines the duties of the Executive Branch, including the President. It broadly gives the President responsibility for managing the nation’s foreign affairs, and it also authorizes him to issue executive orders. In times of emergency, Congress may give the President power to manage national security.
The Establishment Clause of the First Amendment to the US Constitution prohibits the Government from making any law “respecting the establishment of religion.” It prohibits government actions that unduly favour one religion over another, as well as religion over non-religion and vice versa. There is still contention in the federal judicial system about how to frame government actions that implicate religion.
Immigration and Nationality Act (INA)
The INA governs immigration to and citizenship in the US. It was enacted in 1952 and amended in 1965, and it is codified under Title 8 of the United States Code. There are two key provisions of the INA at play in this case:
- 8 U.S.C. § 1152(a)(1)(A): forbids discrimination “in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
- 8 U.S.C. § 1182(f): allows the President to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” if they find that their entry “would be detrimental to the interests of the United States.”
- Lemon v Kurtzman 403 US 602, 612-13 (1971) (Lemon): in order to overcome a challenge under the Establishment Clause, the Government must show that (1) its action “has[s] a secular legislative purpose,” (2) the “principal or primary effect [is] one that neither advances nor inhibits religion,” and (3) it does “not foster an excessive government entanglement with religion.”
- Kleindienst v Mandel 408 US 753, 769-70 (1972) (Mandel): Congress can delegate conditional exercise of power with regards to the policies and rules it has drawn up for the exclusion of aliens to the executive branch. If the executive “exercises this power negatively on the basis of facially legitimate and bona fide reason,” the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the rights and interests of others affected by it.
- Sale v Haitian Ctrs Council Inc 509 US 155, 187 (1993): held that 8 U.S.C. § 1182(f) granted the President power to establish a naval blockade that would deny undocumented Haitian migrants from disembarking on US shores.
- Kerry v Din 135 S Ct 2128, 2141 (2015) (Kennedy, J, concurring): clarified Mandel, noting that one would need to show an affirmative showing a bad faith on the executive’s part to challenge a bona fide reason for exclusion.
Legal doctrines & principles
- Mootness: in the US legal system, a matter is considered moot if further legal proceedings can have no effect.
- Ripeness: refers to the readiness of a case for litigation. A claim is not considered ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.
- Nondelegation: a theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized. In the US, this doctrine is used to restrain the delegation of legislative authority by Congress to administrative agencies and officials under the executive branch.
- Constitutional avoidance: a doctrine of US law that says that a federal court should refuse to rule on a constitutional issue if the case can be resolved on another basis.
In Trump v Intl Assistance Project 137 S Ct 2080 (2017), the Supreme Court issued a per curium opinion granting certiorari in both cases and consolidating them for argument. Oral arguments are scheduled to begin on 10 October 2017.
Additionally, the court granted the Government’s applications for stay in part, narrowing the scope of the injunctions on § 2(c), § 6(a), and § 6(b). These provisions cannot be enforced against foreign nationals with a “credible claim of a bona fide relationship with a person or entity in the United States.” This applies even if that means exceeding the 50,000-person cap in § 6(b). The Court stated that “[t]he facts of these cases illustrate the sort of relationship that qualifies.”
In addition to the addressing the substantive claims against EO-2, the Court asked the parties to address whether the challenges to § 2(c) became moot on 14 June 2017.
Justice Thomas filed an opinion concurring in part and dissenting in part, joined by Justices Alito and Gorsuch, stating that they believed the injunctions should have been stayed in full. Thomas argued that their temporary remedy would prove unworkable, and that by granting certiorari, the Court was implicitly signifying that the judgments below will be reversed.
There are several questions before the Supreme Court:
- Did the challenges to § 2(c) became moot on 14 June 2017?
- Do the plaintiffs have standing to challenge the legality of EO-2?
- Has the President exceeded his statutory authority in enacting EO-2?
- Does EO-2 comply with the Immigration and Nationality Act?
- Are portions of EO-2 in violation of the Establishment Clause?
Decisions on the constitutionality carry a great deal of finality, particularly those issued by the Supreme Court, as stare decisis is an important legal principle in the US judicial system. Because of this, federal courts often exercise a greater deal of self-restraint when questions of constitutionality arise, preferring to follow the legal doctrine of constitutional avoidance. It is likely that the Court will attempt to resolve the case without addressing whether or not EO-2 is in violation of the Establishment Clause.
One way this could be resolved is by determining that the temporary suspension of entry outlined in § 2(c) expired on 14 June 2017, and so the challenge is moot. Alternatively, the Court could find that the plaintiffs do not have standing to challenge the legality of EO-2. Some have argued that, by granting certiorari and keeping the injunctions intact in part, the Court has recognized the plaintiffs’ standing; however, Justice Thomas’s opinion suggests that it might not be that straightforward. The Government’s argument is that the case is not ripe for adjudication, as it rests on the possible delay or denial of entry of family members, and as § 3 provides for exceptions and waivers to the ban.
If the case is justiciable, the Court will need to assess whether or not President Trump had the authority to issue EO-2, under 8 U.S.C. § 1182(f) of the INA, or if certain provision or all of the order exceeds the delegation of power granted to him by Congress. Prior invocations of this section have offered a factual basis that logically supported the exclusion of a relevant class of noncitizens. This was the basis for the 9th Circuit’s holding that EO-2 exceeded the President’s statutory authority, as it was not supported by a finding that entry of these noncitizens would be detrimental to the interests of the United States. This decision is disputed by those who argue that US Constitution affords the President broad discretion in matters of national security and foreign affairs.
However, should the Court find that the President had the authority to issue EO-2, either in part or in whole, it will need to evaluate whether or not the provisions in question are in violation of the anti-discrimination provision of the INA or the Establishment Clause. This analysis is largely dependent on how the Court applies the test developed in Mandel, and possibly the Lemon test as well. The Government has asked that the Court not consider statements made by the President and his aides during his campaign. It has also suggested that the court should limit itself to the “official record.” However, the 4th Circuit declined to do so, stating, “EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it.” Additionally, this argument is complicated by the 6 June 2017 statement of former White House press secretary Sean Spicer that President Trump’s tweets are “considered official statements.”
- Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry into the United States
- 25 May 2017 ruling from the 4th Circuit Court on IRAP v Trump
- 12 June 2017 ruling from the 9th Circuit Court on Hawaii v Trump
- 26 June 2017 ruling from the Supreme Court on both cases
- SCOTUSblog’s case file for ongoing coverage
[i] The seven countries listed in EO-1 (Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen) had been previously identified by the Department of Homeland Security in relation to the Visa Waiver Program (VWP), which allows citizens of specific countries to travel to the US for up to 90 days without a visa. Starting in January 2016, if a national of a VWP country had travelled to any of these seven countries since 1 March 2011, they would not be eligible for the waiver program and would need to apply for a visa to travel to the US. This was the basis for the Trump administration claim that these countries had been identified by the Obama administration as harbouring terrorists. Politifact rated this statement half true.
[ii] While Iraq had previously been included in this list in EO-1, it was addressed separately in § 4 of EO-2.