In Upholding Travel Ban, Supreme Court Endorses Presidential Authority While Leaving Door Open for Future Challenges

While the Supreme Court handed a major legal and political victory to President Donald Trump by upholding the third iteration of the administration’s much-contested travel ban, the justices’ ruling also left the door somewhat open for future challenges—a development little noted amid the early punditry over winners and losers.

In a 5-4 decision in Trump v. Hawaii announced June 26, the Supreme Court endorsed the President’s power to exercise broad authority in suspending the entry of foreign national groups—as Trump has done for most nationals from several majority-Muslim countries. But the ruling fell short of granting him the unquestioned power to do so.

The President characterized the decision as a vindication of his policies to control the borders, at a time when his administration’s hard-edged enforcement practices at the Southwest border have received sharp scrutiny. Critics are concerned, however, the decision will embolden Trump to suspend the entry of other nationalities.

The order did not quite provide the President carte blanche in this area; the justices were careful to require that such bans be based on a finding that entry of barred foreign nationals will be “detrimental to the interests of the United States.” The decision also left open the possibility that courts may find that the ban is not being implemented in a lawful manner.

Delivered just days after Trump made an about-face on his controversial practice of separating families detained at the border, the Supreme Court decision is a substantial victory for an administration that has had much of its immigration policy hindered by a long series of court interventions. Legal and political challenges have created obstacles for the administration’s efforts to punish “sanctuary cities,” end Deferred Action for Childhood Arrivals (DACA), and proceed with the zero-tolerance policies at the border that have resulted in family separation.

Evolution of the Travel Ban

Over nearly a year and a half, the administration has repeatedly revised its travel ban, with each successive iteration designed to be more legally unassailable than the last. These revisions ultimately helped it pass muster when it reached the high court—even as the President’s tweets and public comments complicated matters for the government attorneys defending it.

The original travel ban, implemented the week after the President’s inauguration, appeared to closely resemble candidate Trump’s calls to ban Muslims from entering the country. Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” immediately suspended for 90 days the entry of all permanent residents, immigrants, visitors, and refugees from seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—all of which are Muslim-majority. It also paused all refugee resettlement for 120 days and indefinitely halted admission of Syrian refugees.

The ban, which took effect immediately upon its signing, caused sudden chaos at U.S. airports and resulted in the removal of some arriving nonimmigrants and the revocation of more than 60,000 visas. It was quickly subject to multiple legal challenges, and several federal courts temporarily restrained or enjoined parts of the executive order.

Travel Ban 2.0

Perhaps recognizing the inability of the first ban to ultimately pass Supreme Court scrutiny, the President signed a second order, Executive Order 13780, with the same title on March 6, 2017. Designed to make the ban more legally defensible, the new version made several changes, including delaying the implementation date and exempting individuals who were previously authorized to travel to the United States. The day before the new order was to take effect, it was subject to a nationwide temporary restraining order. However, the Supreme Court later allowed for partial implementation with respect to foreigners without a bona fide relationship with a U.S. individual or entity—showing that the administration was successful in avoiding earlier legal pitfalls.

The first two bans ordered the government to conduct a review of countries that did not provide adequate information to vet their nationals, and then give those countries 50 days to begin providing the requested information.

Travel Ban 3.0

After this review process, on September 27, 2017, the President released the third iteration of the travel ban—this time a proclamation, rather than an executive order—with further changes to make the ban more legally sound. The ban was now limited to various visa restrictions depending on the country of nationality; it also added three new countries, including two non-Muslim-majority countries, North Korea and Venezuela. While initially subject to a partial nationwide injunction, in early December 2017 the Supreme Court allowed the administration to implement the travel ban while the case moved through the courts.

As multiple challenges progressed, a lawsuit brought by Hawaii was the first to make it onto the Supreme Court’s docket. On April 25, 2018, the Supreme Court heard oral arguments in the case, which was also brought by three individuals with foreign relatives who were affected by the ban and the Muslim Association of Hawaii. Two weeks before the hearing, the administration removed Chad from the list, stating the country had sufficiently improved its information sharing about "suspected terrorists" and had taken steps to secure its passports.

Effects of the Travel Ban

Visa grants to individuals from the named countries significantly decreased with implementation of the ban. Compared to fiscal year (FY) 2016, average monthly immigrant visa grants to nationals of banned countries fell 68 percent, and nonimmigrant visa grants dropped 77 percent (see Figure 1).

Iranian nationals, who received the most visas of these groups prior to the travel ban, were hit particularly hard: Nonimmigrant visa grants to Iranians plummeted from 2,450 per month in FY 2016 to just 255 per month after the third travel ban took effect (see Figure 2).

Supreme Court Ruling

The court’s majority found that while Section 212(f) of the 1965 Immigration Act vests the President with “ample power” to impose restrictions on foreigners, it requires him to make a finding that their entry would be “detrimental to the interests of the United States.”

Chief Justice John Roberts zeroed in on this requirement in his opinion. Leaving open the question whether such a finding would be subject to judicial review, the court majority held that in this case, the President’s findings were sufficient to sustain the ban. This means that no President will be able to simply assert that the entry of a particular group is detrimental to U.S. interests; rather, there must be an evidentiary basis for that decision.

In its challenge, the state of Hawaii argued that the President had exercised this authority in violation of a federal law on discrimination. However, the court held that the restriction only prohibits discrimination in visa allocation based on nationality and other criteria, and does not apply to the President’s power to determine who may enter the country.

Finally, the justices found that the travel ban did not violate the Constitution’s Establishment Clause, which bars laws discriminating against particular religions or religious groups. Because this question had not been ruled on by the Ninth U.S. Circuit Court of Appeals that blocked parts of the travel ban, the Supreme Court was not obligated to rule on it. But the majority chose to do so, likely realizing that it was unavoidable—especially given public attention on the President’s statements as evidence of underlying religious animus. On the campaign trail, Trump had called for a “total and complete shutdown of Muslims entering the United States.”

The Chief Justice found that notwithstanding statements made by the President and his administration, the ban was not constitutionally impermissible. Recognizing the authority of the executive branch over admissions and national security concerns, the court applied a deferential standard of review in deciding whether the travel ban had religious animus. It found that the ban had “legitimate grounding in national security concerns,” and thus did not violate the Establishment Clause.

At the same time, the Chief Justice mildly rebuked the President’s “uneven” statements, giving examples of Presidents who have used their power to “espouse the principles of religious freedom and tolerance” while cautioning that some had failed to live up to those words. In a more pointed reference, the Chief Justice remarked that the court needed not only to consider the President’s particular statements, but also “the authority of the presidency itself.”

In a historic move, the majority opinion also took the opportunity to finally overrule Korematsu v. United States. The 1944 decision, long viewed as one of the Supreme Court’s most objectionable ones, upheld the forcible internment of Japanese Americans during World War II. “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution’,” Roberts wrote.

Dissenting and Concurring Opinions

Four justices penned additional opinions. Justice Anthony Kennedy issued a short concurrence, though noting that while the executive action may have passed scrutiny in this instance, in this and all official actions, the President is still subject to the Constitution. Shortly before he announced his retirement, Kennedy expressed concern over the image the President’s words and actions present to the world. “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts,” he wrote.

Justice Clarence Thomas used his opinion to express skepticism over the authority of district courts to issue nationwide injunctions. A practice increasingly seen in immigration policy—in fact, a district court in San Diego issued a nationwide injunction on family separations the same day the Supreme Court ruled—Thomas argued that the practice is inconsistent with historical limits on equitable relief and judicial power, and called on the court to rule on the practice in future opinions.

In a lengthy opinion full of statistics since the travel ban’s implementation, Justice Stephen Breyer called for further proceedings to address how the travel ban is being applied. Breyer said the exemptions and waivers may in practice show an antireligious bias and thus violate the Establishment Clause. He reasoned that if the government is failing to properly apply these exemptions, there is a stronger argument for underlying religious animus. After the ruling, new State Department data showed that U.S. consular officers cleared for waivers just 2 percent of visa applications over the course of nearly five months.

Reading her sharp dissent from the bench, which justices do when they are particularly intent on making their objection known, Justice Sonia Sotomayor similarly asserted that the ban likely does not withstand Establishment Clause scrutiny. She argued that the easier standard of review used by the majority was inappropriate and that, even with this lowered standard, the ban should not pass muster in large part because of the President’s repeated statements suggesting an intent to focus the policy on Muslims.

An Opening for Possible Future Challenges

Despite the Supreme Court’s validation of the travel ban, it is possible that there will be further litigation, either in this case or others, to evaluate whether the ban is being implemented within the spirit of the Supreme Court’s decision. For example, if the administration is applying the ban to individuals it knows not to be a security risk without granting exemptions, a possibility Breyer raised, this would undermine some of the assumptions in the majority’s opinion. Evidence showing that in practice the ban is not a tool to address legitimate security concerns would weaken much of the deference the court granted it.

As a broad endorsement of presidential authority on immigration, Trump v. Hawaii may play a role in ongoing litigation over the legality of the DACA program. Created by President Obama and exercising his discretion via executive action, the program offers work authorization and relief from deportation to unauthorized immigrants brought to the United States as children. Defenders of the DACA program might suggest the presidential authority affirmed in Hawaii also applies to the discretion a President can exercise with respect to enforcement actions against individuals already in the country—a timely point considering Texas and 25 other states have challenged Obama’s authority to create the program. While the applicability of Hawaii in that instance is far from clear, the ruling may prove less applicable in cases challenging the Trump administration’s termination of DACA, as those cases contest the move on more procedural grounds.

There is no doubt that the Supreme Court’s decision is a significant reinforcement of a President’s broad authority in admission of foreign nationals, and, while not an explicit vindication of President Trump’s hardline approach to border security, will certainly bolster and perhaps embolden his next steps on immigration.

• Full text of Supreme Court opinion, Trump v. Hawaii
• Audio recording of oral argument, Trump v. Hawaii
• First version of the travel ban, Executive Order 13769, "Protecting the Nation From Foreign Terrorist Entry Into the United States"
• Second version of the travel ban, Executive Order 13780, "Protecting the Nation from Foreign Terrorist Entry into the United States"
• Third version of the travel ban, "Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats"

National Policy Beat in Brief

President Issues Executive Order Ending Family Separation. President Trump signed an executive order on June 20 temporarily ending family separations at the U.S.-Mexico border. The order instructs the Department of Homeland Security (DHS) to detain families together while parents await criminal prosecution for illegal entry or reentry, and while they have pending immigration proceedings. The President issued the order amid public outcry over family separations that resulted from the administration’s recent zero-tolerance policy. That policy, announced by Attorney General Jeff Sessions in April, ordered the prosecution of all adults crossing the border illegally. Because children cannot be held in criminal incarceration facilities the policy resulted in the government taking children from their parents. The administration said that at least 2,342 children were separated at the Southwest border between May 5 and June 9.

The President’s order will likely violate a series of federal court decisions. The 1997 Flores settlement obligates the government to hold unaccompanied migrant children in the “least restrictive” setting possible—usually releasing them to family members or friends. A 2015 ruling by U.S. District Judge Dolly Gee, upheld by the Ninth U.S. Circuit Court of Appeals in 2016, extended the settlement to children arriving in family units. In doing so, the courts restricted the government’s ability to detain families. Trump ordered Sessions to file a petition asking the court to lift these requirements.

On June 26, less than a week after the President’s order, a federal district court judge in San Diego ordered the administration to stop separating families and reunify each family. It gave the administration 14 days to reunite children under age 5 with their parents, and 30 days for those 5 and older. Before the judge’s ruling, it appeared that the administration was only reunifying families if the parents had agreed to be deported. As of June 23, just 522 children had been reunited with their parents.

• Los Angeles Times article on family separations and the new reunification order
• U.S. District Court of the Southern District of California order in L. v. ICE
• President Trump’s executive order, “Affording Congress an Opportunity to Address Family Separation”
• Attorney General’s petition with the U.S. District Court for the Central District of California for relief   
• Department of Health and Human Services press release on family reunification
• MPI commentary on family separations
• MPI Policy Beat on family separations

House Fails to Pass Immigration Bills. The House voted down two sweeping immigration proposals this month, in a failed attempt to provide a pathway to legal status for DREAMers (unauthorized immigrants brought to the United States as children). On June 21, the House rejected a hardline immigration bill introduced by Judiciary Committee Chairman Bob Goodlatte (R-VA). All House Democrats and 41 Republicans voted against the bill, which would have granted temporary legal status to current Deferred Action for Childhood Arrivals (DACA) beneficiaries in exchange for cuts to legal immigration, billions of dollars in new spending on border security, a narrowing of the asylum system, and crackdown on sanctuary cities.

On June 27, the House rejected, by a 121-301 vote, a “compromise” proposal introduced by GOP leadership. Largely similar to the Goodlatte proposal, the bill’s chief difference was its offer of a path to citizenship for as many as 1.15 million DREAMers, according to Migration Policy Institute estimates. It also offered a path to citizenship for some “legal DREAMers,” or young immigrants already on temporary visas who could become unauthorized when they turn 21 because they can no longer be considered dependents on their parents’ visa applications.

With the failure of both bills, which exposed deep divisions among Republicans over immigration, it appears unlikely Congress will act on immigration before the mid-term elections in November.

• H.R. 4760, “Securing America’s Future Act of 2018”
• H.R. 6136, “Border Security and Immigration Reform Act”
• The Hill article on the two House votes
• MPI commentary on the number of DREAMers who would have benefited from the bills
• MPI commentary on the implications of the bills for asylum seekers and unaccompanied children

Justice Department Will Not Defend DACA in Texas Lawsuit. In a lawsuit filed by seven states in a federal district court in Texas, the Justice Department informed the court that it will not defend DACA. The state of Texas filed the lawsuit in May, challenging the lawfulness of the program first launched by the Obama administration in 2012. The suit argues that the executive branch did not have the authority to unilaterally implement DACA, which offers work authorization and relief from deportation to unauthorized immigrants brought to the United States as children. A group of 22 DACA recipients represented by the Mexican American Legal Defense and Educational Fund (MALDEF) has been approved by the court to defend the program.

Before bringing the lawsuit, Texas Attorney General Ken Paxton last year threatened to sue the federal government if Trump did not rescind the program—prompting the administration to attempt a DACA phaseout, which has since been heavily contested and subject to multiple nationwide injunctions keeping the program mostly in effect.

• BuzzFeed article on the lawsuit
• Justice Department brief in Texas v. Nielsen

Supreme Court Throws out Lower Court Ruling in Abortion Case. The Supreme Court on June 4 vacated a lower court ruling allowing a pregnant minor to obtain an abortion while in the custody of the Office of Refugee Resettlement (ORR), the Department of Health and Human Services (HHS) agency responsible for unaccompanied child migrants. The decision, likely the result of a compromise between the court’s liberal and conservative justices, was a victory for the Trump administration’s position on detained minors seeking abortions. However, the court declined to take up the administration’s request for disciplinary action against the child’s attorneys, whom the Justice Department had accused of misleading it about whether she would have the abortion.

• Chicago Tribune article on the Supreme Court decision
• Supreme Court order in Azar v. Garza

Sponsors of Child Migrants Will Be Fingerprinted and Investigated. ORR will begin fingerprinting parents, family members, and others claiming custody of unaccompanied children under its care, and will share the fingerprints with DHS to check their immigration status. Previously, ORR fingerprinted nonparent sponsors, but only shared the results with the FBI, not with DHS. There is no indication yet that the fingerprints will be used for enforcement purposes.

Experts suggest fingerprinting likely will have a chilling effect on the willingness of potential sponsors to come forward.

• Reuters article on the vetting change
• Notice of Regulatory Change announcing the DHS-HHS information sharing

USCIS Launches Office Focused on Denaturalization. U.S. Citizenship and Immigration Services (USCIS) opened an office to investigate and review cases of naturalized citizens suspected of having obtained their citizenship through fraudulent means. Investigated cases will then be referred to the Justice Department, whose attorneys could seek to revoke the immigrants’ citizenship in federal criminal or civil court proceedings. In the past, USCIS pursued such cases as they arose, but not through a coordinated effort with a dedicated office.

The move was triggered by a 2016 report by the DHS Office of Inspector General (OIG) which found that 315,000 old fingerprint records for immigrants who were ordered deported or had criminal convictions had not been uploaded to a DHS database, resulting in incomplete vetting of immigrant benefit and naturalization applications. The same report found that more than 800 immigrants had been ordered deported under one identity but gained citizenship under another.

• Associated Press article on the new office
• 2016 DHS OIG report, Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records

USCIS Completes Lottery for One-Time Increase in H-2B Visas. In June, USCIS held a lottery granting 15,000 additional H-2B visas for temporary nonagricultural workers, including those in seasonal industries such as landscaping and hospitality. Although the annual 66,000 cap for H-2B visas was reached in February, Congress delegated DHS the authority to increase the number of visas available. In May, DHS announced the allocation of 15,000 additional visas. Within the first five days of accepting applications, DHS received more petitions than visas available, and on June 7 ran a lottery to allocate them.

This is the second time this year USCIS had to run a lottery for H-2B visas. In February it did so for the 33,000 H-2B visas normally allocated for the second half of fiscal year 2018, after receiving more applications than available visas.

• USCIS press release on the H-2B lottery

Some Chinese Visa Applicants Will Be Subject to Additional Vetting. The State Department announced that starting June 11, consulates and embassies in China will begin additional screening of Chinese nationals applying for U.S. visas to study or work in certain sensitive fields. The agency did not provide guidance on what specific fields will receive additional screening. Some affected individuals may receive a visa with a validity of just one year.

The new screening procedures are being implemented while the Trump administration engages in a trade war with Beijing. The tensions on trade have also increased concerns about Chinese nationals accessing sensitive U.S. technologies.

• U.S. Senate Committee on the Judiciary hearing at which a State Department official announced the new policy

State and Local Policy Beat in Brief

Federal Judge in Pennsylvania Rules Anti-Sanctuary City Law Unconstitutional. A ruling by a federal judge in Philadelphia has undermined two tools the Trump administration has used to target jurisdictions not fully cooperating with U.S. Immigration and Customs Enforcement (ICE) on enforcement activities: a federal law prohibiting policies that restrict information sharing with U.S. officials, and certain conditions the Trump administration placed on federal grants. The court found 8 U.S.C. § 1373 unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Section 1373 bars state or local policies that prohibit entities or officials from sharing immigration status or citizenship information with ICE.

The court also ruled unconstitutional three new conditions the Justice Department placed on Byrne JAG grants, which support a variety of local law-enforcement activities. The conditions required that applicants allow ICE agents into local detention facilities to interview detainees, notify ICE of release dates of certain inmates, and certify compliance with Section 1373.

Currently, this ruling only applies in the Eastern District of Pennsylvania. While several other federal courts have enjoined the administration’s placement of conditions on federal grants, this is the first court to ever to rule that Section 1373 is unconstitutional.

• Court order in Philadelphia v. Sessions
• The Atlantic article on the decision
• Policy Beat on the administration’s efforts to limit sanctuary cities

ICE Arrests 114 Immigrants in Worksite Enforcement Action. ICE officers arrested 114 unauthorized immigrants following a worksite enforcement action at a gardening center in Sandusky, Ohio. According to an ICE spokesperson, the investigation began in October 2017, with the arrest of a suspected document vendor. The agency is pursuing a variety of allegations against the company and the arrested individuals, including harboring unauthorized immigrants, unlawful employment, false impersonation of a U.S. citizen, aggravated identity theft, and fraud.

The operation is just one of several largescale worksite enforcement actions carried out this year. Earlier operations in Morristown, Tennessee and at 7-Eleven stores across the country resulted in hundreds of arrests. ICE leadership has promised to dramatically scale up the scope and frequency of agency workplace activities.

• CNN article about the Ohio enforcement action
• Policy Beat on the administration’s worksite enforcement strategies

Southern District of California Will Implement Operation Streamline. In July, the Southern District of California will implement Operation Streamline, a program to increase the speed of prosecutions along the U.S.-Mexico border. Operation Streamline is a program that allows for expedited criminal justice processing of immigration crimes. Depending on how it is implemented at the local level, groups of migrants may be heard and tried en masse, and many who face felony charges for illegal reentry may have the opportunity to instead plead the misdemeanor of illegal entry, with the plea bargain helping to resolve the case expeditiously.

The program, launched under the Bush administration in 2005, has both increased and decreased in popularity since then. At one point, the Southern District of California was the only border district not to implement Streamline, instead choosing to focus its resources on more serious crimes.

The decision to adopt Streamline now is the result of the Trump administration’s zero-tolerance policy, which aims to criminally prosecute all unauthorized border crossers.

• Los Angeles Times article about the decision to implement Streamline

ICE Arrest of Pizza Delivery Man Captures Nationwide Attention. A federal judge blocked ICE from deporting an unauthorized immigrant detained by agents while trying to deliver a pizza to a federal military base in New York City. While delivering to the base, Pablo Villavicencio showed his IDNYC, a municipal government-issued ID card that all New York City residents can obtain regardless of immigration status. The guard asked for further identification and when Villavicencio could not provide any, someone at the base called ICE which took Villavicencio into custody. The case rose to state and nationwide attention, with members of Congress and Governor Andrew Cuomo weighing in to support Villavicencio. A federal judge suspended his removal to allow him to attend a July 20 hearing, at which he will contest the circumstances of his arrest and removal.

• New York Times article on the case