Read with this part: the edited opinion in Trump v. Hawaii, which is assigned in Module 6.
The case
In September 2017, after two earlier executive orders had been blocked in court, the President issued Proclamation No. 9645. It restricted entry into the United States by nationals of several countries, based on a worldwide review of how well each country shared information needed to vet travelers. Hawaii, three individuals and a Muslim association sued. They argued that the Proclamation exceeded the President’s authority under the immigration statute and that it violated the Establishment Clause, because it was really a ban on Muslims. The Court upheld the Proclamation, five to four.
The first holding: the statute
The statute is 8 U.S.C. § 1182(f). It lets the President suspend the entry of “any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” “for such period as he shall deem necessary.” The Court read it as broadly as it is written:
“By its terms, §1182(f) exudes deference to the President in every clause.” 585 U.S. at 684.
The Court then rejected each limit the challengers tried to read into it. It concluded: “The Proclamation is squarely within the scope of Presidential authority under the INA.”
Put this in Jackson’s terms. Congress authorized the President to act, so this is category one, the same place as Curtiss-Wright. Like Curtiss-Wright, it is a case about how much Congress may hand the President in foreign affairs, and the answer is: a great deal.
The second holding: the Establishment Clause
The challengers pointed to the President’s own statements, as a candidate and in office, calling for a ban on Muslims entering the country. The Proclamation itself is neutral on its face; it does not mention religion.
The Court’s starting point was Kleindienst v. Mandel (1972), a case about one visa denied to one person. Under Mandel, when the Executive excludes a foreign national for “a facially legitimate and bona fide reason,” courts do not look behind it. The Court then went one step further, but only by assumption:
“For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. … As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” 585 U.S. at 704–705.
Under that test the Proclamation survived. The Court pointed to the worldwide review behind it, to the removal of some countries from the list, and to its exceptions and waivers.
Notice what the Court did not decide. It did not hold that rational basis applies. It assumed that it could look that far and no further. The deference that runs through this Module shows up here in a new form: the more the case is about who may enter the country, the less a court will ask about why.
Korematsu
Justice Sotomayor’s dissent compared the decision to Korematsu v. United States (1944), which upheld the wartime exclusion of Japanese Americans from the West Coast. The Court answered that Korematsu “has nothing to do with this case,” and then, in the same paragraph, repudiated it:
“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.’” 585 U.S. at 710 (quoting 323 U.S. at 248 (Jackson, J., dissenting)).
What to carry out of Part 4
- The statute is where the case is won. § 1182(f) is a broad delegation, and the President acted within it. This is category one.
- The constitutional claim gets narrow review. The Court assumed, without deciding, that it could apply rational basis review, and it upheld the Proclamation under that standard.
- The theme of the tutorial. When Congress backs the President in foreign affairs (Curtiss-Wright, Trump v. Hawaii), he almost always wins. When Congress is silent, the history decides (Dames & Moore, Medellín). When Congress is against him, he wins only with a power that is his alone (Zivotofsky).
Check yourself
A student says, “Trump v. Hawaii held that rational basis review applies to Establishment Clause challenges to immigration policy.” Is that right?
Answer
No. The Court said that a conventional application of Mandel, "asking only whether the policy is facially legitimate and bona fide, would put an end to our review." Because the Government suggested the inquiry might go further, the Court then said "we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review," and added that it "need not define the precise contours of that inquiry." It assumed it could go that far; it did not hold that it must. The Proclamation passed the more demanding of the two tests, so the Court did not have to choose between them.