Trump v. Hawaii- A Proclamation Upheld

On June 26, 2018, the Supreme Court of the United States issued its decision in one of the last remaining cases from the 2017 term, Trump, President of the United States, et al., v. Hawaii et al. In a 5-4 decision, Chief Justice Roberts wrote the majority opinion, upholding President Trump's travel ban. The Supreme Court found President Trump 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 and found that the respondents failed to demonstrate a likelihood of success on the merits of their claim that Presidential Proclamation No. 9645 violates the establishment clause. Roberts wrote:

"By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language."

The majority gave great deference to the President when it comes to the discretion the INA gives to the President regarding aliens entry into the United States. (The deference if reading the opinion closely has little, if any, bounds.) Roberts cites to other bans previous presidents have imposed and how the Court has upheld such previous discretion. Roberts noted that the "sole prerequisite set forth in Section 1182(f) is that the President 'find[]' that the entry of the covered aliens 'would be detrimental to the interests of the United States." Roberts also stated that 1182(f)'s use of the word "class" was broad and "encompasses a group of people linked by nationality," suggesting the strong possibility entire nations could be banned.

Turning to comments President Trump had made on it being a Muslim ban, Roberts concluded that "a Presidential directive, neutral on its face, addressing a matter with the core of executive responsibility" is not invalidated by a president's comments outside the proclamation. Roberts also pointed out the waiver program that the Solicitor General had stated in oral arguments was not a sham. (Actual data cited in Justice Breyer's dissent disputes those comments.)

Justice Sotomayor compared this decision to the infamous and wrongly decided Korematsu case. Roberts took an opportunity to disclaim Korematsu without officially, decisively overturning it explicitly, stating:

"The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: 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.' 323 U. S., at 248 (Jackson, J., dissenting)."

Justice Thomas concurred, spending much time asserting that national injunctions have no place. (He may have a valid point there.) Justice Kennedy also concurred, in what in many respects is a confusing one, as short as it is- on the one hand, it seems to call the President out; on another, it would seem to be a final concession that the Court cannot be looked to for resolving checks and balances on the other two branches of government. Kennedy stated in part:

"Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive. In all events, it is appropriate to make this further observation. There 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 oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise. The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. 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."

It is an odd concurrence and hard on many levels to rectify with his majority opinion in Masterpiece Cakeshop.

Justice Breyer issued a dissent, calling into question the data on waivers and how that has been a mostly illusory element since the ban was implemented. Justice Sotomayor issued an impassioned dissent, arguing how today's decision was no better than Korematsu and had disturbing parallels, then closing strongly with the following:

"Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent."

We will have to watch to see how President Trump uses this broad discretion and whether he uses this decision to support any actions on the border or elsewhere. Soon after the Court ruled, President Trump did issue a tweet (caps in original):

"SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!"