The Immigration Precedent of Trump v Hawaii
In what ways can the executive deny entry into the United States? It is ultimately the power of a sovereign state and its executive, to both protect its borders and determine who is eligible to enter them. According to US law, the executive has the power to extend legislation determining the eligibility of groups of immigrants. This was the central issue in the case of Trump v Hawaii. Is the denial of entry to foreign nationals from seven countries a lawful exercise of presidential power, and does it violate the Establishment Clause?
In September of 2017, the President issued Presidential Proclamation 9645, which outlined plans for assessing deficiencies in information-gathering practices on foreign nationals by their home government. This included information related to public safety, such as terror involvement, as well as providing examples of travel documentation. The President, alongside the Department of Homeland Security and intelligence agencies, created a “baseline” for countries to meet with regards to information sharing and identity management systems. The baseline evaluated the quality of identity management practices, public safety information, and available risk assessment (such as “no fly” lists). The citizens of countries which did not meet the baseline, after being solicited for 50 days to do so, were denied entry into the United States for 180 days. After this time period, the government would conduct another review to determine if the country’s standards had changed. Notably, the countries that were affected by this proclamation were almost all Muslim majority.
The Trump administration filed for writ of certiorari to the Supreme Court from the 9th Circuit Court of Appeals, which ruled for a preliminary injunction — a temporary halt — on the immigration ban in favor of the plaintiffs (Hawaii). Thus, it is important to note that the original plaintiffs of the case became the respondents in the Supreme Court case.
The respondents — the state of Hawaii, three citizens with foreign relatives who had been affected by the law, and the Muslim Association of Hawaii (henceforth Hawaii) — argued that the proclamation not only violated the Immigration and Nationality Act (INA), but also the Establishment Clause of the First Amendment. The contested clause of the INA was § 1182(f), which 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.”
And the Establishment Cause states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
In the Hawaii’s argument, they outlined how the denial of visas based on nationality went against the INA’s intent, as well as how the President’s choice of denied countries was mainly muslim-majority, fulfilling his campaign promise of “banning muslims from the United States,” as there were non-muslim majority countries which failed the baseline and were not excluded. Thus, the Establishment Clause would apply, as the President exercised a proclamation to disfavor immigrants from muslim majority countries.
Additionally, Hawaii argues that the President’s application of a travel ban goes against the intent of Congress. In 1965, Congress removed the quota system for immigration, replacing it with the current system based on family ties and merit. Additionally, they passed 8 U.S.C. § 1152(a)(1)(A), which made it illegal to discriminate against a foreign national in the visa process based on country of origin.
However, the petitioner (henceforth Trump) argued that the President’s actions were not only unbiased, but were completely legal. In their brief, they outlined the differences between 8 U.S.C.S. § 1182(f) and 8 U.S.C.S. § 1152(a)(1)(A). According to their argument, the president’s restriction under 1182 simply made the potential immigrants inadmissible based on their government’s noncompliance. In fact, they were not discriminated against in the visa application process because at no point was their nationality the denying factor, but their inadmissibility under § 1182. Although this textual argument seems to be built on minutiae, this is ultimately the side that the Supreme Court took.
However, the Supreme Court failed to evaluate the religiously motivating factors behind the decision, which is similar to an opinion in a precedental case. In Korematsu v United States, the Supreme Court ruled that the military’s forced relocation of Japanese Americans during WWII on the basis of their race was constitutional. The court’s reasoning? During times of crisis and threats to national security, the executive must take swift actions to protect American interests. The court did not address the racism that guided the decision; they only addressed the constitutionality of the removal. Although the Court in Trump v Hawaii formally denounced the decision in Korematsu, it is important to note that the majority opinion did not address the Plaintiff’s accused anti-religious motivations. It appears that the most legal way to discriminate based on religion, race, or national origin is to provide a national security-based reason.
In this case, the text is clear — the President has the power to deny entry of foreign nationals into the United States for any national security reason and can impose restrictions as appropriate.
But what is the consequence of such action? From a national security standpoint, the repeated denial of foreign nationals has created a comfortable precedent for presidents to follow (including President Biden in early 2021, citing COVID-19 related reasons). There is little debate that the President should be able to block foreign travel when appropriate. However, blocking foreign travel limits the legal methods of entering into the United States.
At a functional level, the presidential proclamation removes individuals from designated countries from being eligible to receive a visa into the US. Whether the applicant actually receives a visa is reliant on other factors, but there is nonetheless a legal way for people to immigrate into the US (aside from refugee status, which is a separate issue). Once this method of entry is exhausted, as with the ban on the seven Muslim majority countries, the foreigner can either try to enter illegally or not enter at all. In the case of Chad, Iran, and the other countries listed, the reason for denial was due to the government’s lack of identity management and public safety information sharing. It is unlikely that these individuals have an acute need to enter into the United States, but they nevertheless can only enter illegally.
In countries where the need is more acute, such as extensive climate-change related disasters or lack of farming due to prolonged drought, it is more likely that individuals will attempt to enter illegally, and that many will attempt to enter all at once. This was the conundrum faced by the Trump Administration in late 2018: 7,000 migrants from Central America, with nothing to go back to at home, were seeking entry into the United States at once. This not only overwhelmed the system at the border for processing entry visas, and caused many migrants to enter illegally. What would have happened if the Trump Administration shut down all visa processing for foreign nationals from various Central American states? These individuals would have had no legal way of entering into the United States, and would have entered illegally. Trump v Hawaii showed that given the proper national security justification, virtually any immigration policy will be supported by the Supreme Court.
Olwyn Kells is a junior concentrating in International and Public Affairs and Slavic Studies. She currently serves as a staff writer for the BULR Blog, and can be reached at olwyn_kells@brown.edu.