Trump v. Hawaii

Before Trump, there was Obama

Unless you do your own research, you aren't likely to know that during the Obama administration the federal government prevented Muslims from entering the United States. The federal government did this through a secret program—Controlled Application Review andResolution Program—set up by the United States Citizenship and Immigration Service; a part of the U.S. Department of Homeland Security. In 2008, as the Bush administration was winding down, the USCIS created the  Controlled Application Review and Resolution Program.

This program denied or delayed the applications of individuals who the officials decided were national security risks. These individuals were not given reasons for the denials. CARRP remained a secret until discovered during lawsuits challenging the denial or lack of action on applications for admission. 

To avoid these lawsuits, the USCIS suddenly granted the applications of the plaintiffs. This is odd considering that these applications had lain dormant for several years under the national-security-risk determination. The USCIS granted the applications to render the lawsuits moot; thus allowing this program to avoid scrutiny. CARRP included nationals from far more countries than the seven countries affected by Trump’s executive order. The ACLU has filed several of the lawsuits challenging CARRP, and it acknowledges that the Obama administration treated immigrants very badly. The media were not so interested in programs, secret or otherwise, that deprived immigrants of due process during the Obama administration.

After Trump became president, he issued executive orders and proclamations regarding emigrants from countries that failed to provide sufficient information on their nationals seeking to enter the United States. This review of Trump v. Hawaii and the preceding review of the CARRP should quiet the true believers on each side. Incidentally, there's no reason for the government to operate a program like CARRP in secret. 

Analysis of Trump v. Hawaii

Trump v. Hawaii, is about presidential power under the Immigration and Naturalization Act; power that Congress granted to the Executive Branch. The Act provides: "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).

In an exercise of this power, President Trump issued a proclamation imposing restrictions on the entry of  nationals of countries that did not share adequate information for the United States to make informed entry determinations, or that otherwise presented national security risks. Presidential Proclamation No. 9645. This proclamation was issued after a worldwide review under Executive Order 13780. 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 these eight countries, Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, were chosen. The decision to include these eight countries followed not only review by the Dept. of Homeland Security, but a 50-day period during which the State Dept. encouraged these countries to provide better information on individuals immigrating to the United States. When these countries failed to make sufficient efforts to provide this information, the DHS secretary recommended imposing restrictions on those emigrating from seven of the eight countries. Iraq was excluded from these restrictions because of its cooperation with the United States. The restrictions were not uniform, but varied depending on the circumstances of each country. 

The plaintiffs challenged this proclamation as exceeding the power that Congress granted the president. After a thorough review, however, the Court held that Trump's exercise was within the power granted the president by Congress. (The Court did not say this is a good policy or a bad policy; simply that the president acted within the authority granted him by Congress.) The plaintiffs argued that the presidential proclamation failed to cite sufficient bases for limiting the immigrants from these countries. As the Court noted, however, the proclamation's 12 pages describing the process of evaluation, the reasons that persons from these countries posed a threat, etc. provided a more detailed explanation than previous proclamations of this type. Another objection was that the proclamation did not contain an end date. This objection failed to account for the fact that the 43 proclamations before this one did not contain end dates, Congress did not include such a requirement in its delegation of power to the president, and this proclamation, like several from the Reagan era and the Obama era, conditioned expiration on the ending of the event that made the immigration restrictions necessary. 

The plaintiffs then argued that the proclamation violated the Establishment Clause because it was based on hostility to Islam and not national security concerns. The Court recognized that the proclamation "is facially neutral toward religion," and the plaintiffs were asking "the Court to probe the sincerity of the stated justifications for the policy by [referring] to extrinsic statements . . . ." Specifically, the plaintiffs argued the president’s statements on Muslims were contrary to “fundamental standards of respect and tolerance, in violation of our constitutional tradition.” The Court, however, correctly recognized that “the issue before [the Court] is not whether to denounce the statements”; rather “it is . . . the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter with the core of executive responsibility.”

The Court has long recognized that immigration decisions are "a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Because these decisions can affect international relations, they are more appropriately left to the political branches. And although immigrants do not have a constitutional right to enter the country, the Court has extended judicial review to decisions that affect the constitutional rights of citizens. For example, when the attorney general refused a visa to a "revolutionary Marxist" who had been invited to speak to a conference, the attendees had standing to challenge this decision on First Amendment grounds. But even under those circumstances, the standard of review is whether the executive branch gave a “‘facially legitimate and bona fide’ reason for its action.” And if the executive meets this burden, the Court’s inquiry is over.

Because the Proclamation says nothing about religion and “is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” the Court held that the regulation did not violate the Establishment Clause.    

The plaintiffs and Justice Sotomayor's dissenting opinion tried to make the proclamation about religious intolerance. Justice Sotomayor's and the plaintiffs’ arguments are dishonest. They focused on the fact that five of the seven countries affected are majority Muslim. The Court, however, exposed this dishonest argument by noting that the proclamation covers just 8% of the world's Muslim population, and the majority-Muslim countries included in this proclamation had already been determined to be national security risks by Congress and previous administrations. Furthermore, in addition to Iraq being removed from the list of covered countries, Sudan and Chad—both majority-Muslim countries—have been removed from the list. As a last-ditch effort, Justice Sotomayor invoked the specter of Korematsu v. United States. This effort serves only to highlight the intellectual dishonesty in the justice’s poorly reasoned dissent. The Court exposed the intellectually bankrupt dissent: “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.’” The Court pointed out that “the forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” The proclamation at issue in Trump v. Hawaii, affected individuals immigrating to the United States. Here, the Court reached the correct decision.