Supreme Court Rules for Trump in Travel Ban Case

https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf

1
(Slip Opinion)
OCTOBER TERM, 2017
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL
.
v.
HAWAII
ET AL
.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 17–965. Argued April 25, 2018—Decided June 26, 2018
In September 2017, the President issued Proclamation No. 9645, seek-
ing to improve vetting procedures
for foreign nationals traveling to
the United States by identifying ongoing deficiencies in the infor-
mation needed to assess whether
nationals of particular countries
present a security threat. The Proc
lamation placed entry restrictions
on the nationals of eight foreign states whose systems for managing
and sharing information about thei
r nationals the President deemed
inadequate. Foreign states were selected for inclusion based on a re-
view undertaken pursuant to one of
the President’s earlier Executive
Orders. As part of that review, the Department of Homeland Securi-
ty (DHS), in consultation with th
e State Department and intelligence
agencies, developed an information and risk assessment “baseline.”
DHS then collected and evaluated data for all foreign governments,
identifying those having deficient
information-sharing practices and
presenting national security concerns, as well as other countries “at
risk” of failing to meet the baselin
e. After a 50-day period during
which the State Department made diplomatic efforts to encourage
foreign governments to improve their practices, the Acting Secretary
of Homeland Security concluded that eight countries—Chad, Iran,
Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained
deficient. She recommended entry
restrictions for certain nationals
from all of those countries but Iraq, which had a close cooperative re-
lationship with the U. S. She al
so recommended including Somalia,
which met the information-sharing
component of the baseline stand-
ards but had other special risk factors, such as a significant terrorist
presence. After consulting with multiple Cabinet members, the Pres-
ident adopted the recommendations and issued the Proclamation.
2 TRUMP
v.
HAWAII
Syllabus
Invoking his authority under 8 U.
S. C. §§1182(f) and 1185(a), he de-
termined that certain restrictions were necessary to “prevent the en-
try of those foreign nationals about
whom the United States Gov
-
ernment lacks sufficient information”
and “elicit improved identity-
management and information-sharing protocols and practices from
foreign governments.” The Proclama
tion imposes a range of entry re-
strictions that vary based on the “distinct circumstances” in each of
the eight countries. It exempts lawful permanent residents and pro-
vides case-by-case waivers under certain circumstances. It also di-
rects DHS to assess on a continuing basis whether the restrictions
should be modified or continued, an
d to report to the President every
180 days. At the completion of the first such review period, the Pres-
ident determined that Chad had sufficiently improved its practices,
and he accordingly lifted restrictions on its nationals.
Plaintiffs—the State of Hawaii,
three individuals with foreign rela-
tives affected by the entry suspension, and the Muslim Association of
Hawaii—argue that the Proclamation violates the Immigration and
Nationality Act (INA) and the Establishment Clause. The District
Court granted a nationwide preliminary injunction barring enforce
-
ment of the restrictions. The Ninth Circuit affirmed, concluding that
the Proclamation contravened two pr
ovisions of the INA: §1182(f),
which authorizes the President to “s
uspend the entry of all aliens or
any class of aliens” whenever he “f
inds” that their entry “would be
detrimental to the interests of the
United States,” and §1152(a)(1)(A),
which provides that “no person shal
l . . . be discriminated against in
the issuance of an immigrant visa because of the person’s race, sex,
nationality, place of birth, or plac
e of residence.” The court did not
reach the Establishment Clause claim.
Held
:
1. This Court assumes without deciding that plaintiffs’ statutory
claims are reviewable, notwithstanding consular nonreviewability or
any other statutory nonreviewability issue. See
Sale
v.
Haitian Cen-
ters Council, Inc.
, 509 U. S. 155. Pp. 8–9.
2.
The President has lawfully ex
ercised the broad discretion grant-
ed to him under §1182(f) to suspend th
e entry of aliens into the Unit-
ed States. Pp. 9–24.
(a)
By its terms, §1182(f) exud
es deference to the President in
every clause. It entrusts to the
President the decisions whether and
when to suspend entry,
whose entry to suspend, for how long, and on
what conditions. It thus vests the President with “ample power” to
impose entry restrictions in additi
on to those elsewhere enumerated
in the INA.
Sale
, 509 U. S., at 187. The Proclamation falls well with
-
in this comprehensive delegation. The sole prerequisite set forth in
§1182(f) is that the President “find[
]” that the entry of the covered al-
3
Cite as: 585 U. S. ____ (2018)
Syllabus
iens “would be detrimental to the
interests of the United States.”
The President has undoubtedly fulf
illed 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. He
then issued a Pr
oclamation with
extensive findings about the deficien
cies and their impact. Based on
that review, he found that restricting entry of aliens who could not be
vetted with adequate information was in the national interest.
Even assuming that some form
of inquiry into the persuasiveness
of the President’s findings
is appropriate, but see
Webster
v.
Doe
, 486
U.
S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings
cannot be sustained. The 12-page Proclamation is more detailed
than any prior order issued under
§1182(f). And such a searching in-
quiry is inconsistent with the broa
d statutory text and the deference
traditionally accorded the President in this sphere. See,
e.g.,
Sale
,
509 U. S., at 187–188.
The Proclamation comports with
the remaining textual limits in
§1182(f).
While the word “suspend
” often connotes a temporary de-
ferral, the President is not required
to prescribe in advance a fixed
end date for the entry restriction.
Like its predecessors, the Procla-
mation makes clear that its “conditi
onal restrictions” will remain in
force only so long as necessary to
“address” the identified “inadequa-
cies and risks” within the covered nations. Finally, the Proclamation
properly identifies a “class of alie
ns” whose entry is
suspended, and
the word “class” comfortably encomp
asses a group of people linked by
nationality. Pp. 10–15.
(b)
Plaintiffs have not identi
fied any conflict between the Proc-
lamation and the immigration scheme reflected in the INA that
would implicitly bar the President from addressing deficiencies in the
Nation’s vetting system. The existi
ng grounds of inadmissibility and
the narrow Visa Waiver Program do
not address the failure of certain
high-risk countries to provide a
minimum baseline of reliable infor
-
mation.
Further, neither the legi
slative history of §1182(f) nor his-
torical practice justifies departing fr
om the clear text of the statute.
Pp. 15–20.
(c)
Plaintiffs’ argument that th
e President’s entr
y suspension vio-
lates §1152(a)(1)(A) ignores the basic distinction between admissibil-
ity determinations and visa issuance that runs throughout the INA.
Section 1182 defines the universe of aliens who are admissible into
the United States (and therefore eligible to receive a visa). Once
§1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits
discrimination in the allocation of
immigrant visas based on national-
ity and other traits.
Had Congress intended in §1152(a)(1)(A) to con
-
strain the President’s power to de
termine who may enter the country,
4 TRUMP
v.
HAWAII
Syllabus
it could have chosen language directed to that end. Common sense
and historical practice confirm that §1152(a)(1)(A) does not limit the
President’s delegated authority under
§1182(f). Presidents have re-
peatedly exercised their authority
to suspend entry on the basis of
nationality. And on plaintiffs’ re
ading, the President would not be
permitted to suspend entry from part
icular foreign states in response
to an epidemic, or even if the United
States were on the brink of war.
Pp. 20–24.
3.
Plaintiffs have not demonstr
ated a likelihood of success on the
merits of their claim that the Pr
oclamation violates the Establish
-
ment Clause. Pp. 24–38.
(a)
The individual plaintiffs
have Article III standing to chal-
lenge the exclusion of their re
latives under the Establishment
Clause. A person’
s interest in being united with his relatives is suffi-
ciently concrete and particularized to form the basis of an Article III
injury in fact. Cf.,
e.g.,
Kerry
v.
Din
, 576 U. S. ___, ___. Pp. 24–26.
(b)
Plaintiffs allege that the
primary purpose of the Proclamation
was religious animus and that the President’s stated concerns about
vetting protocols and national securi
ty were but pretexts for discrim-
inating against Muslims. At the he
art of their case is a series of
statements by the President and hi
s advisers both during the cam
-
paign and since the Presid
ent assumed office. The issue, however, is
not whether to denounce the Presid
ent’s statements, but the signifi-
cance of those statements in review
ing a Presidential directive, neu-
tral on its face, addressing a matter within the core of executive re-
sponsibility. In doing so, the Co
urt must consider not only the
statements of a particular President, but also the authority of the
Presidency itself. Pp. 26–29.
(c)
The admission and exclusion of foreign nationals is a “funda
-
mental sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.”
Fiallo
v.
Bell
,
430 U. S. 787, 792. Although foreign nationals seeking admission
have no constitutional right to entr
y, this Court has engaged in a cir-
cumscribed judicial inquiry when the denial of a visa allegedly bur
-
dens the constitutional rights of a U.
S. citizen.
That review is lim
-
ited to whether the Executive give
s a “facially legitimate and bona
fide” reason for its action,
Kleindienst
v.
Mandel
, 408 U. S. 753, 769,
but the Court need not define the pr
ecise contours of that narrow in-
quiry in this case. For today’s pu
rposes, the Court assumes that it
may look behind the face of the Proclamation to the extent of apply-
ing rational basis review,
i.e.,
whether the entry policy is plausibly
related to the Government’s stated objective to protect the country
and improve vetting proce
sses. Plaintiffs’ extrinsic evidence may be
considered, but the policy will be uphe
ld so long as it can reasonably
5
Cite as: 585 U. S. ____ (2018)
Syllabus
be understood to result from a ju
stification independent of unconsti-
tutional grounds. Pp. 30–32.
(d)
On the few occasions where th
e Court has struck down a policy
as illegitimate under rational basis scrutiny, a common thread has
been that the laws at issue were
“divorced from any factual context
from which [the Court] could discern a relationship to legitimate
state interests
.”
Romer
v
. Evans
, 517 U. S. 620, 635. The Proclama-
tion does not fit that pattern. It is expressly premised on legitimate
purposes and says nothing about relig
ion. The entry restrictions on
Muslim-majority nations are limited
to countries that were previous
-
ly designated by Congress or prior administrations as posing national
security risks. Moreover, the Proc
lamation reflects the results of a
worldwide review process undertaken by multiple Cabinet officials
and their agencies. Plaintiffs ch
allenge the entry
suspension based
on their perception of its effect
iveness and wisdom, but the Court
cannot substitute its own assessment for the Executive’s predictive
judgments on such matters. See
Holder
v.
Humanitarian Law Pro-
ject
, 561 U. S. 1, 33–34.
Three additional features of th
e entry policy support the Govern-
ment’s claim of a legitimate national security interest. First, since
the President introduced entry restrictions in January 2017, three
Muslim-majority countries—Iraq,
Sudan, and Chad—have been re
-
moved from the list. Second, for th
ose countries still subject to entry
restrictions, the Proclamation includes numerous exceptions for vari-
ous categories of foreign nationals. Finally, the Proclamation creates
a waiver program open to all cove
red foreign nationals seeking entry
as immigrants or nonimmigrants. Under these circumstances, the
Government has set forth a sufficien
t national security justification
to survive rational basis review. Pp. 33–38.
878 F. 3d 662, reversed and remanded.
R
OBERTS
, C. J., delivered the opinion
of the Court, in which K
ENNEDY
,
T
HOMAS
, A
LITO
, and G
ORSUCH
, JJ., joined. K
ENNEDY
, J., and
T
HOMAS
,
J.,
filed concurring opinions. B
REYER
, J., filed a dissenting opinion, in
which K
AGAN
, J., joined. S
OTOMAYOR
, J., filed a dissenting opinion, in
which G
INSBURG
, J., joined.
_________________
_________________
1
Cite as: 585 U. S. ____ (2018)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
-
ington, D. C. 20543,
of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 17–965
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET
AL
., PETITIONERS
v.
HAWAII,
ET AL
.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
C
HIEF
J
USTICE
R
OBERTS
delivered the opinion of the
Court.
Under the Immigration and Nationality Act, foreign
nationals seeking entry into the United States undergo a
vetting process to ensure that they satisfy the numerous
requirements for admission. The Act also vests the Presi
-
dent with authority to restrict the entry of aliens when-
ever he finds that their entry
“would be detrimental to the
interests of the United States.” 8 U. S. C. §1182(f). Rely-
ing 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 author-
ity under the Act to issue the Proclamation, and whether
the entry policy violates the Establishment Clause of the
First Amendment.
2 TRUMP
v.
HAWAII
Opinion of the Court
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 condu
ct a review to examine the
adequacy of information provid
ed 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, Libya, Somalia, Sudan, Syria, and Yemen—
that had been previously iden
tified by Congress or prior
administrations as posing heightened terrorism risks.
§3(c). The District Court for the Western District of Wash-
ington 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 F. 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, Libya,
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 re-
striction was to stay in effect for 90 days, pending comple-
tion of the worldwide review.
These interim measures were immediately challenged in

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