How the Justices Frame the Legal Question Lead to Their Inexorable Holdings or the President’s Authority Over Who is Admissible to the United States is Subject to Rational Basis Analysis
To no one’s surprise (well, maybe someone living in a cave in northern California who is totally off the grid is surprised) the Supreme Court in a 5-4 decision ruled that President’s Trump third executive order (which the Court calls his "Proclamation" and which is colloquially known as the "Travel Ban" or the "Muslim Ban" or "EO-3") could not be enjoined while the courts were adjudicating its legality. Justice Roberts wrote the majority opinion and was joined by Justices Alito, Gorsuch, Kennedy, and Thomas. Justices Kennedy and Thomas wrote concurring opinions. Justice Breyer joined by Justice Kagan wrote one dissent; and Justice Sotomayor joined by Justice Ginsburg wrote the other dissent. The majority frames the question as whether the President has the power to exclude groups of noncitizens from admission to the United States under the Immigration and Nationality Act for security reasons? The question for the majority is whether the President gave a "facially legitimate and bona fide reason for [his] actions"? Trump v. Hawaii, No. 17-965, slip op. at 30 (June 26, 2018). The Breyer dissent frames the question as whether the promulgation or content of the Proclamation was significantly affected by religious animus against Muslims. The Sotomayor dissent similarly frames question as whether the Proclamation was driven by anti-Muslim animus. Kennedy is a short concurrence calls on the President to adhere to and respect the Constitution; while Thomas in his concurrence calls for an end to district courts issuing nation-wide injunctions and calls for more limits on equitable relief. We might need to listen to what Thomas has to say more carefully as his opinions might be closer to the center in the new Court. Underneath all of the noise is a very basic Constitutional question: does the Supreme Court use a strict scrutiny test to determine whether this Proclamation is Constitutional or does it use a rational basis test? To cut down on the suspense, I’ll let you know, the majority uses a rational basis test.
Now for a little tutorial on the various tests. As you may remember from Constitutional law in your first year of law school, the rational basis test is the most lenient form of judicial review. The courts use it in cases where there are no fundamental rights or suspect classifications involved in the litigation. The challenged law must be rationally related to a legitimate governmental issue. To pass the rational basis test the law must: 1) have a legitimate state interest; and 2) there must be a rational connection between the law’s means and goals. The Supreme Court first described this test in U.S. v. Carolene Products, 304 U.S. 144 (1938). (It’s a case all about milk and milk-based products). It’s very famous for footnote 4, which pretty much lays out the test:
Nor need we enquire whether similar considerations enter into review of statutes directed at particular religious…or racial minorities…whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political process ordinarily to be relied upon to protect minorities which may call for a correspondingly more searching judicial inquiry.
Carolene Products, 304 U.S. at 152 n. 4. (Internal citations omitted).
After Carolene Products, the Supreme Court created and clarified the strict scrutiny test as a means of preventing invidious discrimination that subjects individuals to unequal treatment under the law. To pass the strict scrutiny test the law must have been enacted to further a compelling governmental interest and the law must be narrowly tailored to achieve that interest. For a court to apply strict scrutiny the legislature (or in this case, the President) must have either significantly abridged a fundamental right or passed a law that involves a suspect classification. Suspect classifications include race, national origin, religion, alienage, and poverty. Skinner v. Oklahoma, 316 U.S. 535 (1942). (The State of Oklahoma could not forcibly sterilize "career criminals" people who have been convicted of two or more crimes – in this case, the first crime was stealing chickens, and the second was armed robbery). Then, in the 1970’s, the Supreme Court created the intermediate scrutiny test mainly for cases involving gender bias. To pass intermediate scrutiny the challenged law had to further an important governmental interest and must do so by means that are substantially related to that interest. Craig v. Boren, 429 U.S. 190 (1976).
The majority uses the rational basis test while the dissenting opinions argue that the proper test is strict scrutiny. It all goes to how you frame the issue. The issue here is whether this is a case about national security or is a case about religious discrimination?
The majority opinion first looks at the history of the Proclamation and notes that it was the third one that Trump wrote. The opinion notes that before drafting the Proclamation, the President received input from several governmental agencies. The first issue (after jurisdiction and standing) was whether the Proclamation was a valid exercise of the President’s authority under INA § 212(f). To make it easier for you, here is the statute at issue:
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.
8 U.S.C. § 1182(f), INA § 212(f).
The Court notes that, "[b]y its terms, § 1182(f) [INA § 212(f)] exudes deference to the President in every clause." Trump v. Hawaii, slip op. at 10. And, the only requirement for the President to enact a ban under Section 212(f) is whether the President finds that the entry of noncitizens would be detrimental to the interests of the United States. The Court noted that the President fulfilled the requirement. He ordered DHS and every other agency to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline and then issued a proclamation based on those findings. Sotomayor’s dissent notes that this particular document was all of seventeen pages long. Trump v. Hawaii, slip op. at 19 (Sotomayor, J. dissenting). Nonetheless, the Court found that the language of Section 212(f) is clear and that the Proclamation does not exceed the President’s authority.
The Court next looks at the anti-discrimination clause within the INA and finds that the President’s Proclamation does not violate the clause. Again, to make things easier, here is what the statute says:
No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence.
8 USC § 1152(a)(1)(A), INA § 202(a)(1)(A). The Court held that this provision only applies to visa issuance and not to inadmissibility determinations. The Court noted that Congress could have provided the anti-discrimination language to the issue of inadmissibility determinations but chose not to.
The Court next turns to the issue of whether the President issued the Proclamation for unconstitutional purpose of excluding Muslims. In other words, do the President’s actions violate the Establishment Clause under the First Amendment. Here is where the decision gets very interesting. The Court goes through some of Trump’s greatest hits and most odious statements regarding Muslims and ultimately finds that it does not matter. "[T]he issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself." Trump v. Hawaii, slip op. at 29. The Court looks to whether the President gives a facially legitimate and bona fide reason for its actions.
The Court then decides that the proper test to determine whether the President’s actions violates the Establishment Clause is the rational basis review test. For a court that has struck down several statutes enacted by the states or federal government on First Amendment grounds (from campaign finance, to the rights of nonprofits not to tell patients about abortion options, to the rights of a baker not to bake a cake for a gay couple… it is curious that this is the one time that First Amendment grounds did not matter). The Court itself recognizes that under the rational basis standard of review, the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny.
The Court finds:
The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.
Trump v. Hawaii, slip op. at 34. I would like to point out as a side note, that there have been no terrorist attacks on U.S. soil by the citizens of the countries that are barred from entering under the travel ban. (I did a quick Google search and the hijackers on September 11, 2001 were from Saudi Arabia, the United Arab Emirates, Egypt, and Lebanon. I’m not suggested that citizens from these countries should be banned – among other things September 11th was nearly seventeen years ago – but I think it’s important to note that there was no discussion in the opinion about the actual threat posed by citizens of the banned countries).
The Court notes that there are three features that support the Government’s claim of a legitimate national security interest that prompted the President to enact the ban. First, since enacting the ban, the administration has removed three Muslim-majority counties from the ban – Iraq, Sudan, and Chad. Second, for citizens from the countries listed in the ban, the policy permits certain citizens to travel to the United States on a variety of nonimmigrant visas. Third, the Proclamation creates a waiver program open to all foreign citizens who are seeking admission as either immigrants or nonimmigrants.
Finally, the Court explicitly overrules Korematsu v. United States, 323 U.S. 214 (1944). The Korematsu decision upheld that forcible relocation of U.S. citizens to concentration camps solely, and explicitly, on the basis of race. The Court held that this action was unlawful and outside the scope of Presidential authority. The Court then noted "it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission." Trump v. Hawaii, slip op. at 38. The Court concluded its opinion finding that because the plaintiffs have not shown that they were likely to succeed on the merits of their claims, the Court was reversing the grant of the preliminary injunction as an abuse of discretion. The Court remanded the case to the lower courts for further proceedings.
Justice Kennedy joined the Court’s opinion in full. He noted that substantial deference must be accorded to the Executive branch in its exercise of foreign affairs. But "the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more important for him or her to adhere to the Constitution and to its meaning and its promise." Trump v. Hawaii, slip op. at 2 (Kennedy, J. concurring).
Thomas does not think the majority’s opinion goes far enough. He believes that there are no judicially enforceable limits on the President’s ability to exclude noncitizens from the United States. First, Thomas states that he does not think that district courts have the authority to enter nation-wide injunctions (he calls them "universal injunctions"). Second, he questions whether courts even have the authority to order equitable relief.
Breyer’s Dissent Joined by Kagan
Justice Breyer frames the issue as whether the Proclamation is a policy designed for national security or is it a policy promulgated by racial animus. To determine why the President designed this Proclamation, Justice Breyer believes that the Court has to look at the Proclamations "elaborate system of exemptions and waivers." Breyer notes that in the first month after the Government enacted the Proclamation, the Government granted two waivers out of 6,555 eligible applicants. The Government stated that the number rose to 430 during the first four months that the ban went into effect. However, it is not clear how many applicants filed waiver applications during that four-month period. Breyer goes on to note that while the Proclamation does not apply to asylum seekers or refugees, the number of refugees admitted to the United States has precipitously dropped from 2016 to 2018. In 2016, the U.S. admitted more than 15,000 Syrian refugees. In 2018, by contrast, from January to the date of this opinion, the U.S. has admitted 122 refugees Somalian refugees; 13 Syrian refugees; 3 Iranian refugees; 1 Libyan refugee; and 0 Yemeni refugees. Justice Breyer would remand this decision to District Court for further proceedings and would leave the injunction in effect while the case was being litigated.
Justice Sotomayor’s Dissent Joined by Justice Ginsburg
With every decision that comes down I have to wonder which of the three female justices is my favorite. It changes with each decision. However, this week (and last) the clear winner is Justice Sotomayor. I love good first sentences. This one is awesome: "The United States of America is a Nation built upon the promise of religious liberty." She then proceeds to frame the issue as whether the Proclamation violates the Establishment Clause under the First Amendment. She notes that the Court "leaves undisturbed a policy first advertised openly and unequivocally as a "total and complete shutdown of Muslims entering the United States" because the policy now masquerades behind a façade of national security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus." Trump v. Hawaii, slip op. at 1 (Sotomayor J., dissenting).
Justice Sotomayor looks at the following factors that the Court has generally considered in determining whether a government policy violates the Establishment Clause: 1) the text of the government policy; 2) its operation; and, 3) any available evidence regarding the historical background of the decision under challenge. Sotomayor then quotes from several Trump speeches, tweets, and statements, as evidence of his religious animus. Sotomayor concludes by saying: "Ultimately, what began as a policy explicitly "calling for a total and complete shutdown of Muslims entering the United States" has since morphed into a "Proclamation" putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact: the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islam and its followers." Trump v. Hawaii, slip op. at 13 (Sotomayor, J., dissenting).
Justice Sotomayor then goes after the majority and notes that in other Establishment Clause cases the Court does not use rational-basis scrutiny. Supreme Court precedent involving religious discrimination are subject to heightened scrutiny. She argues that the proper test is the reasonable observer test. That is, if the reasonable observer would understand an executive action to be driven by discriminatory animus, that action must be invalidated. Trump v. Hawaii, slip op.at 15 n. 6 (Sotomayor, J. dissenting).
Justice Sotomayor then reviews the process set forth in the Immigration and Nationality Act regulating the admission of noncitizens to the United States. She notes that in additional to vetting rigorously any individuals seeking admission to the United States, the Government also rigorously vets the information-sharing and identity-management systems of other countries. She notes that Congress has already erected a statutory scheme that fulfills national-security interests and that the Government was "wholly unable" to articulate any credible national security interest that wasn’t covered under the existing statutes and regulations. She concludes that none of the features of the Proclamation support the Government’s claim that it is genuinely and primarily rooted in a legitimate national-security interest.
In the end, it all comes down to how the Justices frame the question. Is the case about the executive authority of the President to protect the borders? Or, is it a case of religious animus masquerading as a national security issue.
Trump v. Hawaii, No. 17-965 (June 26, 2018).