138 S. Ct. 2392 (2018)
Shortly after taking office, President Trump signed Executive Order 13769 directing a review of information provided by foreign governments about their nationals seeking entry and temporarily restricting entry from seven countries previously identified as posing terrorism risks.1
After courts enjoined that order, the President revoked it and issued Executive Order 13780, which again directed a worldwide review and temporarily restricted entry from six of the countries.2
Following completion of the review, the President issued Proclamation No. 9645 on September 24, 2017, placing entry restrictions on nationals of eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—whose systems for managing and sharing information the President deemed inadequate.3
The Proclamation imposed varying restrictions by country, exempted lawful permanent residents and asylees, provided for case-by-case waivers, and directed ongoing 180-day reviews; restrictions on Chad were later lifted after it improved its practices.4
Plaintiffs including the State of Hawaii, three U.S. citizens with foreign-national relatives from Iran, Syria, and Yemen applying for visas, and the Muslim Association of Hawaii challenged the Proclamation in the District of Hawaii on statutory and Establishment Clause grounds.
The district court granted a nationwide preliminary injunction.5 The Ninth Circuit affirmed on statutory grounds.6 The Supreme Court granted certiorari.7
Whether the President lawfully exercised the broad discretion granted to him under 8 U.S.C. §1182(f) to suspend the entry of aliens into the United States?8
Section 1182(f) grants the President broad authority to suspend the entry of any aliens or class of aliens whenever he finds that their entry would be detrimental to the interests of the United States. The statute entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.9
Yes. The President fulfilled the statutory prerequisite by ordering a comprehensive multi-agency evaluation of every country's compliance with the information and risk assessment baseline.10 He then issued the Proclamation with extensive findings describing deficiencies in the practices of select foreign governments that deprive the Government of sufficient information to assess risks.11 The Proclamation crafted country-specific restrictions most likely to encourage cooperation given each country's distinct circumstances while securing the Nation until improvements occur.12
The 12-page Proclamation is more detailed than any prior order issued under the statute.13
The President lawfully exercised the broad discretion granted under 8 U.S.C. §1182(f).14
Related opinions on this issue
Justice Kennedy joined the Court's opinion in full.15 He noted that governmental action may be subject to judicial review to determine whether it is inexplicable by anything but animus. He observed that even if further proceedings are permitted on remand, discovery must not intrude on the foreign affairs power of the Executive.16
He stressed that the oath officials take to adhere to the Constitution is not confined to spheres in which the Judiciary can correct or comment upon their actions.17 The very fact that an official may have broad discretion makes it all the more imperative for that official to adhere to constitutional guarantees.18
Whether the Proclamation violates 8 U.S.C. §1152(a)(1)(A)’s prohibition on nationality discrimination in the issuance of immigrant visas?19
Section 1152(a)(1)(A) prohibits discrimination in the issuance of immigrant visas on the basis of nationality. It operates in a different sphere from section 1182(f), which defines the universe of aliens who are admissible into the United States. The two provisions thus operate independently. Section 1152(a)(1)(A) does not limit the President's delegated authority under section 1182(f).20
No. Section 1152(a)(1)(A) is expressly limited to the issuance of immigrant visas. Section 1182(f) allows the President to suspend entry of immigrants or nonimmigrants. The Proclamation's entry restrictions on immigrant travel therefore do not violate the provision.21 The distinction between admissibility determinations and visa issuance runs throughout the INA.
Section 1182 sets the boundaries of admissibility. Section 1152(a)(1)(A) prohibits discrimination only in the allocation of immigrant visas once those boundaries are set.22 Presidents have repeatedly exercised authority to suspend entry on the basis of nationality. This confirms that section 1152(a)(1)(A) does not constrain the President's power.23
The Proclamation does not violate 8 U.S.C. §1152(a)(1)(A).24
Whether the Proclamation violates the Establishment Clause of the First Amendment?25
A government action is unconstitutional under the Establishment Clause if it is motivated by a purpose to discriminate against religion.26 When reviewing a Presidential directive that is neutral on its face and addresses a matter within the core of executive responsibility, courts apply rational basis review. They uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.27
No. The Proclamation is facially neutral toward religion. It is expressly premised on legitimate national-security concerns about deficient vetting and information-sharing protocols. The entry restrictions on Muslim-majority nations are limited to countries previously designated by Congress or prior administrations as posing national security risks.28 The Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials.29
Three Muslim-majority countries have been removed from the list since entry restrictions were introduced.30 The Proclamation includes numerous exceptions for students, exchange visitors, and other categories of foreign nationals.31 It creates a waiver program open to all covered foreign nationals.32 These features support the Government's claim of a legitimate national security interest that survives rational basis review.33
The Proclamation does not violate the Establishment Clause of the First Amendment.34
Related opinions on this issue
Justice Thomas joined the Court's opinion.35 He added that section 1182(f) does not set forth any judicially enforceable limits that constrain the President.36 The President has inherent authority to exclude aliens from the country.37
The Establishment Clause does not create an individual right to be free from all laws that a reasonable observer views as religious or antireligious.38 The plaintiffs cannot raise any other First Amendment claim because the alleged religious discrimination was directed at aliens abroad.39 Even on its own terms the plaintiffs' proffered evidence of anti-Muslim discrimination is unpersuasive.40
Joined by Justice Kagan
Justice Breyer dissented.41 He focused on the Proclamation's elaborate system of exemptions and waivers.42 If applied as written, that system would strengthen the argument for the Proclamation's lawfulness.43
Evidence suggests the Government is not applying the system as written.44 Waivers are vanishingly rare.45 Consular officers reportedly lack discretion to grant them.46
He would have sent the case back to the District Court for further proceedings on the waiver program and left the injunction in effect.47 Alternatively, he would have found the evidence of antireligious bias a sufficient basis to set the Proclamation aside.48
Joined by Justice Ginsburg
Justice Sotomayor dissented.49 She argued that a reasonable observer, presented with the President's statements during the campaign and in office calling for a total and complete shutdown of Muslims entering the United States, would conclude that the Proclamation was motivated by anti-Muslim animus.50 The Proclamation's national-security rationale is a repackaging that cannot conceal its discriminatory purpose.51
The majority's application of rational basis review is insufficiently stringent.52 The decision repeats the tragic mistake of Korematsu by sanctioning a policy driven by animus toward a disfavored group.53