Trump v. Hawaii
| Decision Date | 26 June 2018 |
| Docket Number | No. 17–965.,17–965. |
| Parties | Donald J. TRUMP, President of the United States, et al., Petitioners v. HAWAII, et al. |
| Court | U.S. Supreme Court |
Noel J. Francisco, Solicitor General, Washington, DC, for Petitioners.
Neal K. Katyal, Washington, DC, for Respondents.
Noel J. Francisco, Solicitor General, Chad A. Readler, Acting Assistant Attorney, General, Jeffrey B. Wall, Edwin S. Kneedler, Deputy Solicitors General, Hashim M. Moopan, Deputy Assistant Attorney, General, Jonathan C. Bond, Michael R. Huston, Assistants to the Solicitor, General, Sharon Swingle, H. Thomas Byron III, Attorney, Department of Justice, Washington, DC, for Petitioners.
Russell A. Suzuki, Acting Attorney General of the, State of Hawaii, Clyde J. Wadsworth, Solicitor General of the, State of Hawaii, Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry, Robert T. Nakatsuji, Kaliko'onalani D. Fernandes, Kevin M. Richardson, Deputy Attorneys General, Department of the Attorney General, Honolulu, HI, for the State of Hawaii.
Neal Kumar Katyal, Colleen E. Roh Sinzdak, Mitchell P. Reich, Elizabeth Hagerty, Sundeep Iyer, Reedy C. Swanson, Hogan Lovells US LLP, Washington, DC, Thomas P. Schmidt, Sara Solow, Alexander B. Bowerman, Hogan Lovells US LLP, for Respondents.
Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens whenever he finds that their entry "would be detrimental to the interests of the United States." 8 U.S.C. § 1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment.
Shortly after taking office, President Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary of Homeland Security to conduct a review to examine the adequacy of information provided by foreign governments about their nationals seeking to enter the United States. § 3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—that had been previously identified by Congress or prior administrations as posing heightened terrorism risks. § 3(c). The District Court for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government's request to stay that order. Washington v. Trump, 847 F.3d 1151 (2017) (per curiam ).
In response, the President revoked EO–1, replacing it with Executive Order No. 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative burdens on agencies and the need to diminish the risk that dangerous individuals would enter without adequate vetting, EO–2 also temporarily restricted the entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO–1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. §§ 2(c), 3(a). The order explained that those countries had been selected because each "is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones." § 1(d). The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review.
These interim measures were immediately challenged in court. The District Courts for the Districts of Maryland and Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and the respective Courts of Appeals upheld those injunctions, albeit on different grounds. International Refugee Assistance Project (IRAP ) v. Trump, 857 F.3d 554 (C.A.4 2017) ; Hawaii v. Trump, 859 F.3d 741 (C.A.9 2017) (per curiam ). This Court granted certiorari and stayed the injunctions—allowing the entry suspension to go into effect—with respect to foreign nationals who lacked a "credible claim of a bona fide relationship" with a person or entity in the United States. Trump v. IRAP, 582 U.S. ––––, ––––, 137 S.Ct. 2080, 2088, 198 L.Ed.2d 643 (2017) (per curiam ). The temporary restrictions in EO–2 expired before this Court took any action, and we vacated the lower court decisions as moot. Trump v. IRAP, 583 U.S. ––––, 138 S.Ct. 353, 199 L.Ed.2d 203 (2017) ; Trump v. Hawaii, 583 U.S. ––––, 138 S.Ct. 377, 199 L.Ed.2d 275 (2017).
On September 24, 2017, after completion of the worldwide review, the President issued the Proclamation before us—Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public–Safety Threats. 82 Fed. Reg. 45161. The Proclamation (as its title indicates) sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present "public safety threats." § 1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.
The Proclamation described how foreign states were selected for inclusion based on the review undertaken pursuant to EO–2. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and several intelligence agencies, developed a "baseline" for the information required from foreign governments to confirm the identity of individuals seeking entry into the United States, and to determine whether those individuals pose a security threat. § 1(c). The baseline included three components. The first, "identity-management information," focused on whether a foreign government ensures the integrity of travel documents by issuing electronic passports, reporting lost or stolen passports, and making available additional identity-related information. Second, the agencies considered the extent to which the country discloses information on criminal history and suspected terrorist links, provides travel document exemplars, and facilitates the U.S. Government's receipt of information about airline passengers and crews traveling to the United States. Finally, the agencies weighed various indicators of national security risk, including whether the foreign state is a known or potential terrorist safe haven and whether it regularly declines to receive returning nationals following final orders of removal from the United States. Ibid.
DHS collected and evaluated data regarding all foreign governments. § 1(d). It identified 16 countries as having deficient information-sharing practices and presenting national security concerns, and another 31 countries as "at risk" of similarly failing to meet the baseline. § 1(e). The State Department then undertook diplomatic efforts over a 50–day period to encourage all foreign governments to improve their practices. § 1(f). As a result of that effort, numerous countries provided DHS with travel document exemplars and agreed to share information on known or suspected terrorists. Ibid.
Following the 50–day period, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient in terms of their risk profile and willingness to provide requested information. The Acting Secretary recommended that the President impose entry restrictions on certain nationals from all of those countries except Iraq. §§ 1(g), (h). She also concluded that although Somalia generally satisfied the information-sharing component of the baseline standards, its "identity-management deficiencies" and "significant terrorist presence" presented special circumstances justifying additional limitations. She therefore recommended entry limitations for certain nationals of that country. § 1(i). As for Iraq, the Acting Secretary found that entry limitations on its nationals were not warranted given the close cooperative relationship between the U.S. and Iraqi Governments and Iraq's commitment to combating ISIS. § 1(g).
After consulting with multiple Cabinet members and other officials, the President adopted the Acting Secretary's recommendations and issued the Proclamation. Invoking his authority under 8 U.S.C. §§ 1182(f) and 1185(a), the President determined that certain entry restrictions were necessary to "prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information"; "elicit improved identity-management and information-sharing protocols and practices from foreign governments"; and otherwise "advance [the] foreign policy, national security, and counterterrorism objectives" of the United States. Proclamation § 1(h). The President explained that these restrictions would be the "most likely to encourage cooperation" while "protect[ing] the United States until such time as improvements occur." Ibid.
The Proclamation imposed a range of restrictions that vary based on the "distinct circumstances" in each of the eight countries. Ibid. For countries that do not cooperate with the United States in...
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