by Lisa Soronen, executive director, State and Local Legal Center  

In a 5-to-4 decision in Trump v. Hawaii, the Supreme Court ruled in favor of President Trump’s travel ban.

The third travel ban indefinitely prevents immigration from six countries: Chad, Iran, Libya, North Korea, Syria, and Yemen. Hawaii and others sued President Trump claiming the ban was illegal and unconstitutional.

The court agreed to decide four issues. First, whether the case is justiciable, meaning whether the legal issues are “fit for review.” Second, whether the third travel ban exceeds the president’s authority under the Immigration and Nationality Act (INA). Third, whether the travel ban violates the First Amendment's Establishment Clause because it seeks to exclude Muslims. Fourth, whether the Ninth Circuit nationwide injunction was overbroad.  

The third travel ban restricted entry of nationals of countries “whose systems for managing and sharing information about their nationals the president deemed inadequate.” While campaigning for office and during his tenure, including after the third travel ban was adopted, the president and various advisers made anti-Muslim statements and indicated the travel bans were designed to exclude Muslims from the United States.  

The Supreme Court, in an opinion written by Chief Justice Roberts, assumed without deciding that plaintiffs could challenge the travel ban under INA. INA allows 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.” According to the court, this statute “exudes deference to the President in every clause,” and the travel ban falls “well within” the statute.

The court explains: “[The President] first ordered [the Department of Homeland Security] 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 the Government of ‘sufficient information to assess the risks [those countries’ nationals] pose to the United States.’ 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 court concluded the plaintiffs had standing to challenge the travel ban as violating the Establishment Clause because it has kept them separated from overseas relatives. The court described the anti-Muslim statements of the president and his advisers but stated the issue before the court “is not whether to denounce the statements.” Because this case involved a “national security directive regulating the entry of aliens abroad,” the court only applied “rational basis review” where it would uphold the travel ban “so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” According to the court, “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’”

Justice Kennedy joined the majority opinion in full but issued a stern warning to government officials who act with discriminatory animus: “[t]here are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”

The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of lower federal courts’ authority to issue injunctive relief that benefits non-parties, pointing out such injunctions are extremely common and especially important where federalism is at stake. The court didn’t rule on the “propriety of the nationwide scope of the injunction” because it reversed the lower court’s grant of an injunction.

Stuart Banner of the UCLA School of Law Supreme Court Clinic wrote the SLLC amicus brief, which these organizations joined: National League of Cities, International City/County Management Association, and International Municipal Lawyers Association.

Related Content 

SLLC Supports Non-party Injunctive Relief in Travel Ban Case. This blog post from 2018 looks at the amicus brief that SLLC wrote supporting non-party injunctive relief. 

What’s Next for the Second Blocked Travel Ban? This blog post from March 2017 looked at a previous version of the travel ban and why it was blocked by federal courts. 

Ninth Circuit Temporarily Strikes Down Third Travel Ban. This blog post from 2018 explains why the Ninth Circuit struck down the travel ban.