Trump v. Hawaii
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''Trump v. Hawaii'', No. 17-965, 585 U.S. ___ (2018), was a landmark
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case involving
Presidential Proclamation 9645 Executive Order 13780, titled Protecting the Nation from Foreign Terrorist Entry into the United States, was an executive order signed by United States President Donald Trump on March 6, 2017. It placed a 90-day restriction on entry to the U.S. b ...
signed by President
Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of Pe ...
, which restricted travel into the United States by people from several nations, or by
refugee A refugee, conventionally speaking, is a displaced person who has crossed national borders and who cannot or is unwilling to return home due to well-founded fear of persecution.
s without valid
travel document A travel document is an identity document issued by a government or international entity pursuant to international agreements to enable individuals to clear border control measures. Travel documents usually assure other governments that the beare ...
s.
Hawaii Hawaii ( ; haw, Hawaii or ) is a state in the Western United States, located in the Pacific Ocean about from the U.S. mainland. It is the only U.S. state outside North America, the only state that is an archipelago, and the only stat ...
and several other states and groups challenged the Proclamation and two predecessor
executive order In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of th ...
s also issued by Trump on statutory and constitutional grounds. Citing a variety of statements by Trump and administration officials, they argued that the proclamation and its predecessor orders were motivated by
anti-Muslim Islamophobia is the fear of, hatred of, or prejudice against the religion of Islam or Muslims in general, especially when seen as a geopolitical force or a source of terrorism. The scope and precise definition of the term ''Islamophobia'' ...
animus. A
U.S. district court The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
issued a
preliminary injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in par ...
preventing the ban from coming into effect, finding that plaintiffs were likely to succeed on their argument that the proclamation violated the
Establishment Clause In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text ...
of the
First Amendment to the United States Constitution The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the ...
and exceeded the president's powers under the
Immigration and Nationality Act The U.S. Immigration and Nationality Act may refer to one of several acts including: * Immigration and Nationality Act of 1952 * Immigration and Nationality Act of 1965 * Immigration Act of 1990 See also * List of United States immigration legisla ...
(INA). This injunction was affirmed by the U.S. Court of Appeals for the Ninth Circuit, which ruled that the proclamation was likely a violation of INA; the court of appeals did not reach the constitutional issue. On June 26, 2018, the Supreme Court reversed the Court of Appeals in a 5–4 decision, ruling that plaintiffs did not have "likelihood of success on the merits" on either their INA or their Establishment Clause claims. The court vacated the injunction and remanded the case to lower courts for further proceedings. The decision of the Court, written by Chief Justice
John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including ''Nati ...
, applied
rational basis review In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
and emphasized deference to the
executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state. In poli ...
. In addressing the travel ban, the Court also repudiated the infamous decision of ''
Korematsu v. United States ''Korematsu v. United States'', 323 U.S. 214 (1944), was a landmark decision by the Supreme Court of the United States to uphold the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has been wid ...
'', , which had justified the President's powers to establish
internment camps for Japanese Americans Internment is the imprisonment of people, commonly in large groups, without Criminal charge, charges or Indictment, intent to file charges. The term is especially used for the confinement "of enemy citizens in wartime or of terrorism suspects ...
during
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
. In
dissent Dissent is an opinion, philosophy or sentiment of non-agreement or opposition to a prevailing idea or policy enforced under the authority of a government, political party or other entity or individual. A dissenting person may be referred to as ...
,
Justice Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...
wrote that the majority's decision "redeploys the same dangerous logic underlying ''Korematsu'' and merely replaces one gravely wrong decision with another." Responding to this dissent, Roberts wrote for the majority that "''Korematsu'' has nothing to do with this case. 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." It is not agreed upon among legal scholars as to whether this statement actually overturned ''Korematsu'' or was merely a "disapproving
dictum In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal ter ...
" of it.


Background


Executive Orders 13769 and 13780

As part of his
immigration policy Border control refers to measures taken by governments to monitor and regulate the movement of people, animals, and goods across land, air, and maritime borders. While border control is typically associated with international borders, it a ...
, United States President Donald Trump had sought to limit foreigners from certain countries from traveling into the United States. Initially he signed
Executive Order 13769 Executive Order 13769, titled Protecting the Nation from Foreign Terrorist Entry into the United States, labeled the "Muslim ban" by critics, or commonly referred to as the Trump travel ban, was an executive order by US President Donald Trump ...
(EO 13769) on January 27, 2017, which among its provisions banned entry to citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for a 90-day period regardless of their
visa Visa most commonly refers to: *Visa Inc., a US multinational financial and payment cards company ** Visa Debit card issued by the above company ** Visa Electron, a debit card ** Visa Plus, an interbank network *Travel visa, a document that allows ...
status, and suspended the
United States Refugee Admissions Program (USRAP) The United States Refugee Admissions Program (USRAP) is a consortium of federal agencies and nonprofit organizations which work hand in hand to identify and admit qualified refugees for resettlement into the United States. Under Section 207 of ...
for 120 days. Because the countries affected have large
Muslim Muslims ( ar, المسلمون, , ) are people who adhere to Islam, a monotheistic religion belonging to the Abrahamic tradition. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of the God of Abrah ...
populations and Trump repeatedly called for banning Muslim immigration during his Presidential campaign, EO 13769 was commonly referred to as the "Muslim ban", and was heavily criticized by many state legislatures and federal lawmakers. Several lawsuits were filed to challenge the order, and in '' Washington v. Trump'', heard in the
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
, a restraining order was placed on enforcement of EO 13769 on February 3, 2017. President Trump then signed
Executive Order 13780 Executive Order 13780, titled Protecting the Nation from Foreign Terrorist Entry into the United States, was an executive order signed by United States President Donald Trump on March 6, 2017. It placed a 90-day restriction on entry to the U.S. b ...
(EO 13780) on March 6, 2017, replacing EO 13769 to acknowledge the findings from the Ninth Circuit. It did not outright ban travel from citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen, but required significant additional scrutiny before they would be able to enter the United States and banned new visas for these countries for 90 days. It also continued to suspend USRAP for 120 days.


Hawaii's challenge to EO 13780

As with EO 13769, EO 13780 was immediately criticized and was legally challenged in several cases. Of note was a challenge from the State of Hawaii, which formed the basis of the Supreme Court case. Hawaii brought a civil action challenging the executive order on March 7, asking for declaratory judgment and an injunction halting the order. The State of Hawaii moved for leave to file an Amended Complaint pertaining to Executive Order 13780.
Doug Chin Douglas S. Chin (born July 21, 1966) is an American attorney and politician who served as the 13th Lieutenant Governor of Hawaii from February to December 2018. A member of the Democratic Party, Chin previously was the 14th Attorney General of Haw ...
, Hawaii's Attorney General, publicly stated, "This new executive order is nothing more than Muslim Ban 2.0. Under the pretense of national security, it still targets immigrants and refugees. It leaves the door open for even further restrictions." Hawaii's legal challenge to the revised ban cites top White House advisor Stephen Miller as saying the revised travel ban is meant to achieve the same basic policy outcome as the original. The Amended Complaint lists eight specific causes of action pertaining to Executive Order 13780: # Violation of the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
's
Establishment Clause In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text ...
claiming the travel ban targets Muslims # Violation of the Fifth Amendment's
Equal Protection clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
# Violation of the Fifth Amendment's
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
(
substantive due process Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unen ...
) # Violation of the Fifth Amendment's Due Process Clause (
procedural due process Procedural due process is a legal doctrine in the United States that requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those in ...
) # Violation of the
Immigration and Nationality Act of 1952 The Immigration and Nationality Act of 1952 (), also known as the McCarran–Walter Act, codified under Title 8 of the United States Code (), governs immigration to and citizenship in the United States. It came into effect on June 27, 1952. Before ...
(a)(1)(A) and (f) and (a) # Violations of the
Religious Freedom Restoration Act The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at through (also known as RFRA, pronounced "rifra"), is a 1993 United States federal law that "ensures that interests in religiou ...
-1(a) # Substantive violation of the Administrative Procedure Act through violations of the Constitution, Immigration and Nationality Act, and arbitrary and capricious action (2)(A)–(C). # Procedural violation of the Administrative Procedure Act (2)(D), (1), and On March 15, 2017, Judge
Derrick Watson Derrick Kahala Watson (born September 9, 1966) is an American lawyer who serves as the United States federal judge, Chief United States district judge of the United States District Court for the District of Hawaii. A native of Hawaii, he graduat ...
of the
United States District Court for the District of Hawaii The United States District Court for the District of Hawaii (in case citations, D. Haw.) is the principal trial court of the United States federal courts, United States Federal Court System in the U.S. state, state of Hawaii. The court's terri ...
issued a
temporary restraining order An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in par ...
preventing sections 2 and 6 of executive order 13780 from going into effect. In his order, Judge Watson ruled that the State of Hawaii showed a strong likelihood of success on their Establishment Clause claim in asserting that Executive Order 13780 was in fact a "Muslim ban". Judge Watson stated in his ruling, "When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government's national security motivations, the balance of equities and public interests justify granting the Plaintiffs. Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim." He also stated, concerning the Order's neutrality to religion, that the government's position that Courts may not look behind the exercise of executive discretion and must only review the text of the Order was rejected as being legally incorrect, and that: In drawing its conclusion, the Court further quoted the Ninth Circuit appeal ruling on the original Executive Order (13769): "It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims", and quoted in support of its findings, previous rulings that "Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality" ('' Church of the Lukumi Babalu Aye v. City of Hialeah''); "a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions" (''
Larson v. Valente Larson may refer to: __NOTOC__ People and fictional characters *Larson (surname) Places in the United States * Larson, North Dakota, United States, a census-designated place and former city * Larson Creek, Oregon, United States * Larson Crag, Vic ...
''); and that "circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose" ('' Village of Arlington Heights v. Metropolitan Housing''); ending with a comment that "the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
has been even more emphatic: courts may not 'turn a blind eye to the context in which policy arose (''
McCreary County v. ACLU of Kentucky ''McCreary County v. American Civil Liberties Union of Kentucky'', 545 U.S. 844 (2005), was a case argued before the Supreme Court of the United States on March 2, 2005. At issue was whether the Court should continue to inquire into the purpose ...
'', ruled that a law becomes unconstitutional under the
Establishment Clause In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text ...
if its "ostensible or predominant purpose" is to favor or disfavor any religion over any other). The Court also took into account numerous statements by the President and his team prior to and since election, which had directly stated that he sought a legal means to achieve a total ban on Muslims entering the United States, and a "dearth" of substantive evidence in support of the stated security benefits. After Judge Watson's ruling a Department of Justice spokeswoman said the administration would continue to defend the executive order in the courts. President Trump denounced the ruling as "an unprecedented judicial overreach", and indicated that the decision would be appealed, if necessary to the Supreme Court, stating that, "We're talking about the safety of our nation, the safety and security of our people. This ruling makes us look weak." There were 5 opinions attached to the order denying en banc.
Stephen Reinhardt Stephen Roy Reinhardt (born Stephen Roy Shapiro; March 27, 1931 – March 29, 2018) was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was the last federal a ...
and
Marsha Berzon Marsha Lee Berzon ( Siegel; born April 17, 1945) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Education and legal training Berzon graduated with a Bachelor of Arts degree from Radcliffe ...
each wrote concurring opinions, while
Alex Kozinski Alex Kozinski (; born July 23, 1950) is a Romanian-American jurist and lawyer who was a judge on the United States Court of Appeals for the Ninth Circuit, U.S. Court of Appeals for the Ninth Circuit from 1985 to 2017. He was a prominent and inf ...
,
Carlos Bea Carlos Tiburcio Bea (born April 18, 1934) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. He was appointed to that court by President George W. Bush in 2003 to replace Judge Charles Edward Wi ...
, and
Jay Bybee Jay Scott Bybee (born October 27, 1953) is an American lawyer and jurist serving as a senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and has taug ...
each filed a dissenting opinion. Judge Kozinski of the
Ninth Circuit Court of Appeals The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District o ...
filed a late dissent on March 17, 2017, to the Ninth Circuit's opinion in ''Washington v. Trump'' arguing against the State of Washington's Establishment Clause claims on grounds that Trump's speech during the campaign was political speech protected by the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
. Even though the Ninth Circuit had declined to address that issue in reaching its ruling on ''Washington v. Trump'' and U.S. courts do not typically rule on issues that are not before them, Kozinski argued it was appropriate for him to address the issue because Judge Watson in Hawaii had cited the Ninth Circuit opinion in reaching its Establishment Clause ruling. On March 29, 2017, Judge Watson extended his order blocking the ban for a longer duration. The DOJ appealed this ruling. On May 15, a panel of the Ninth Circuit heard arguments on whether to uphold the nationwide injunction. Acting
Solicitor General of the United States The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021. The United States solicitor general represent ...
Jeffrey Wall and Hawaii's attorney,
Neal Katyal Neal Kumar Katyal (born March 12, 1970) is an American lawyer and academic. He is a partner at Hogan Lovells and the Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center. During the Obama administrati ...
, appeared before Circuit Judges
Ronald M. Gould Ronald Murray Gould (born October 17, 1946) is an American lawyer and jurist serving as a U.S. circuit judge of the U.S. Court of Appeals for the Ninth Circuit since 1999. Education Gould was born in 1946 in St. Louis, Missouri. He graduate ...
,
Michael Daly Hawkins Michael Daly Hawkins (born February 12, 1945) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Early life and education Born in Winslow, Arizona, Hawkins received his Bachelor of Arts degree ...
, and
Richard Paez Richard Anthony Paez (born May 5, 1947) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Early life and education Born in Salt Lake City, Utah, Paez received his Bachelor of Arts degree fro ...
for an hour of oral arguments in
Seattle Seattle ( ) is a seaport city on the West Coast of the United States. It is the seat of King County, Washington. With a 2020 population of 737,015, it is the largest city in both the state of Washington and the Pacific Northwest regio ...
's
William Kenzo Nakamura United States Courthouse The William Kenzo Nakamura United States Courthouse is a federal courthouse in Seattle, Washington primarily used by the United States Court of Appeals for the Ninth Circuit. Built in 1940 as the United States Courthouse to consolidate federal age ...
. On June 12, 2017, a unanimous panel of the Ninth Circuit partially upheld Judge Watson's injunction. In its anonymous
per curiam decision In law, a ''per curiam'' decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively (and typically, though not ...
, the court found President Trump's order violated the relevant
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
, and so must be enjoined. However, the court found Judge Watson should have avoided the constitutional question, and that he should not have enjoined the purely internal government
vetting Vetting is the process of performing a background check on someone before offering them employment, conferring an award, or doing fact-checking prior to making any decision. In addition, in intelligence gathering, assets are vetted to determine th ...
review. On June 19, 2017, Judge Watson complied with the decision of the Ninth Circuit and curtailed the injunction such that the injunction would exempt "internal review procedures that do not burden individuals outside of the executive branch of the federal government". On June 26, 2017, in an unsigned ''per curiam'' decision, the United States Supreme Court stayed the lower court injunctions as applied to those who have no "credible claim of a
bona fide In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
relationship with a person or entity in the United States". The Court also granted
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
and set oral arguments for the fall term. The Court did not clarify what constitutes a bona fide relationship. Justice
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
, joined by Justices
Samuel Alito Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has served ...
, and
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American lawyer and judge who serves as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on January 31, 2017, and has served since ...
, partially dissented, writing that the lower courts' entire injunctions against the executive order should be stayed. On June 29, President Trump sent out a
diplomatic cable A diplomatic cable, also known as a diplomatic telegram (DipTel) or embassy cable, is a confidential text-based message exchanged between a diplomatic mission, like an embassy or a consulate, and the foreign ministry of its parent country.Defin ...
to embassies and consulates seeking to define what qualifies as a "bona fide relationship", excluding connections with refugee resettlement agencies, and clarifying that step-siblings and half-siblings are close family while grandparents and nephews are not. On July 14 in Honolulu, Judge Watson found that the President's limitations on refugee resettlement agencies and family definitions violated the Supreme Court's order, writing "grandparents are the epitome of close family members". On July 19, the Supreme Court left in place Judge Watson's order on family definitions, but it stayed while on appeal the part of his injunction on refugee resettlement agencies. Justices Thomas, Alito, and Gorsuch said they would have stayed Judge Watson's entire order. The Court also scheduled oral arguments in the case for October 10. After Judge Watson's order allowing refugee resettlements was then affirmed on appeal, the Supreme Court, on September 12, 2017, issued a stay blocking the order indefinitely.


Presidential Proclamation 9645

On September 24, 2017, Trump signed the new Presidential Proclamation replacing and expanding the March Executive Order. The Supreme Court canceled its hearing, and Solicitor General
Noel Francisco Noel John Francisco (born August 21, 1969) is an American lawyer who served as Solicitor General of the United States from 2017 to 2020. He was the first Asian Americans, Asian American confirmed by the United States Senate to hold the position. ...
then asked the Court to declare the case
moot Moot may refer to: * Mootness, in American law: a point where further proceedings have lost practical significance; whereas in British law: the issue remains debatable * Moot court, an activity in many law schools where participants take part in s ...
and also
vacate A vacated judgment (also known as vacatur relief) makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. ...
the lower courts' judgments. On October 10, 2017, the Supreme Court did so with regard to the Fourth Circuit case. Justice
Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...
dissented, saying the Court should not vacate the judgment below but only dismiss their review as improvidently granted. The Court took no action on the Ninth Circuit case, which addressed the President's refugee ban that expired on October 24. The Supreme Court allowed the travel ban to go into full effect on December 4, pending legal challenges. Seven of the nine justices lifted the injunctions imposed by the lower courts, while two justices wanted the order to be blocked. On December 22, 2017, a three-judge panel of
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
, ruled that President Trump's Executive Order "exceeds the scope of his delegated authority", to deem classes of people by their national origin ineligible to enter the country under the
Immigration and Nationality Act The U.S. Immigration and Nationality Act may refer to one of several acts including: * Immigration and Nationality Act of 1952 * Immigration and Nationality Act of 1965 * Immigration Act of 1990 See also * List of United States immigration legisla ...
. In response, the Trump administration petitioned the Supreme Court for writ of certiorari to challenge the Ninth Circuit's findings, which the Court granted on January 22, 2018.


Supreme Court

The Court heard
oral arguments Oral arguments are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also ad ...
in ''Trump v. Hawaii'' (Docket 17-965) for an hour on April 25, 2018, during which
Noel Francisco Noel John Francisco (born August 21, 1969) is an American lawyer who served as Solicitor General of the United States from 2017 to 2020. He was the first Asian Americans, Asian American confirmed by the United States Senate to hold the position. ...
, the
Solicitor General of the United States The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021. The United States solicitor general represent ...
, personally appeared for the federal government and
Neal Katyal Neal Kumar Katyal (born March 12, 1970) is an American lawyer and academic. He is a partner at Hogan Lovells and the Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center. During the Obama administrati ...
appeared for the state. It was the first time that the Supreme Court had a hearing on any version of the travel ban. Observers of the session believed that the five conservative judges sided with the government in enforcing the ban, though the Court as a whole asked whether the ban equated to religious discrimination and whether it were within presidential power to impose such a ban. Prior to issuing its ruling in ''Trump v. Hawaii'', the Court ruled on ''
Masterpiece Cakeshop v. Colorado Civil Rights Commission ''Masterpiece Cakeshop v. Colorado Civil Rights Commission'', 584 U.S. ___ (2018), was a case in the Supreme Court of the United States that dealt with whether owners of public accommodations can refuse certain services based on the First Amendment ...
'' (Docket 16-111), a case involving the intersection of
anti-discrimination law Anti-discrimination law or non-discrimination law refers to legislation designed to prevent discrimination against particular groups of people; these groups are often referred to as protected groups or protected classes. Anti-discrimination laws ...
s and the
free exercise of religion Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
. Amongst considerations informing the decision of the Court was a finding that the defendant's ruling was based on statements made by public officials which evinced "clear and impermissible hostility" and were not religiously neutral towards the petitioner; the Court reversed the officials' ruling on this basis. Justice
Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
had referenced his majority opinion of '' Church of the Lukumi Babalu Aye v. City of Hialeah'' which similarly dealt with the neutrality of language that legislators used to justify an otherwise neutrally-worded law, which the Court deemed impermissible and therefore declared the law unconstitutional. Some analysts believed that this part of the majority opinion would affect ''Trump v. Hawaii''; analysts noted "clear and impermissible hostility" in language used to support the ban by public officials, including President Trump.


Opinion of the Court

The Court delivered its opinion on June 26, 2018, ruling in a 5–4 decision split along ideological lines that upheld the validity of the travel ban as within the President's powers. Justices Breyer and Sotomayor both read aloud versions of their dissents from the bench. The decision lifted the current injunction against the travel ban's enforcement and remanded the case to lower courts for review of other arguments raised by the plaintiffs. Delivering the majority opinion, Chief Justice
John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including ''Nati ...
concluded that the language of 8 U. S. C. §1182(f) of the Immigration and Nationality Act was clear in giving the President broad authority to suspend the entry of non-citizens into the country and that Trump's Presidential Proclamation 9645 did not exceed any textual limit on the President's authority. Under 8 U. S. C. §1182(f), a President may limit alien entry when he finds that such entry "would be detrimental to the interests of the United States." Trump determined that alien entries from some countries would be detrimental because those countries do not share adequate information with the U.S. for an informed decision on entry, and that entries from other countries are detrimental because their citizens create national security risks. Trump showed that the limits he put in place were tailored to protect American interests. The only prerequisite set forth in §1182(f) is that the President "find" that the entry of the covered aliens would be detrimental to the interests of the U.S. The Supreme Court rule: "The President has undoubtedly fulfilled that requirement here." According to Roberts, Trump acted within his powers. Roberts pointed out that even though five of the seven nations have a Muslim majority, that fact alone "does not support an inference of religious hostility, given that the policy covers just 8% of the world's Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks." Additionally, three Muslim-majority countries have since been dropped from the original Travel Ban upon
Trump's inauguration The inauguration of Donald Trump as the 45th president of the United States marked the commencement of Donald Trump's term as president and Mike Pence as vice president. An estimated 300,000 to 600,000 people attended the public ceremony held ...
. Similarly, there are waiver exemptions such as medical that people from banned nations are eligible for. In conclusion, Roberts says the White House had shown a "sufficient national security justification". The plaintiffs had standing because they had been separated from their families. The main issue was whether the travel ban violated the Establishment Clause to the US Constitution which prohibits the government from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof." Plaintiffs argued that it did due to the President's statements regarding Islam, which may have cast doubt as to the federal objective being free from specifically targeting religion, and if religion is targeted intentionally, then strict scrutiny review applies which requires the government to show that the act was necessary to meet a compelling governmental interest. The court held that the President's travel ban did not violate the Free Exercise Clause where the statements he makes are reasonably understood to result from justification independent of unconstitutional grounds. That independent justification here was national security. Thus, the court applied rational basis review and upheld the travel ban.


''Korematsu''

Part of the majority's decision referenced ''
Korematsu v. United States ''Korematsu v. United States'', 323 U.S. 214 (1944), was a landmark decision by the Supreme Court of the United States to uphold the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has been wid ...
'', , which upheld the constitutionality of President
Franklin D. Roosevelt Franklin Delano Roosevelt (; ; January 30, 1882April 12, 1945), often referred to by his initials FDR, was an American politician and attorney who served as the 32nd president of the United States from 1933 until his death in 1945. As the ...
's
Executive Order In the United States, an executive order is a directive by the president of the United States that manages operations of the federal government. The legal or constitutional basis for executive orders has multiple sources. Article Two of th ...
, which forced
Japanese-American are Americans of Japanese ancestry. Japanese Americans were among the three largest Asian American ethnic communities during the 20th century; but, according to the 2000 census, they have declined in number to constitute the sixth largest Asia ...
citizens into
concentration camps Internment is the imprisonment of people, commonly in large groups, without charges or intent to file charges. The term is especially used for the confinement "of enemy citizens in wartime or of terrorism suspects". Thus, while it can simply ...
during
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
. The dissenting opinions in ''Trump'' had raised the case among their arguments, leading Roberts to write for the majority that " e 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 (citing Justice
Robert H. Jackson Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American lawyer, jurist, and politician who served as an Associate Justice of the Supreme Court of the United States, Associate Justice of the Supreme Court of the Unit ...
's dissent from ''Korematsu''). Scholars disagree on whether this statement "constitutes an actual overturning of ''Korematsu'' or merely disapproving
dictum In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal ter ...
" of the decision.


Concurring opinions

Justice
Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
and Justice
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 199 ...
filed concurring opinions. Kennedy concurred with the majority in finding that the President does have the authority to issue the ban, but emphasized the need for the lower courts to review the ban to make sure it itself is constitutional. In addition, Justice Kennedy went on to discuss the need for United States officials to keep the Constitution in mind when speaking, even if their statements are not able to be adjudicated using judicial review. Justice Thomas's concurrence questioned the need and immediacy of a nationwide injunction against the EO, and the ability of a District Court to issue such an injunction, supporting the decision to reverse the District Court's order.


Dissenting opinions

Justice
Stephen Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and repl ...
wrote one dissenting opinion, joined by Justice
Elena Kagan Elena Kagan ( ; born April 28, 1960) is an American lawyer who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 10, 2010, and has served since August 7, 2010. Kagan ...
, where he agreed with the majority that the case should be remanded to the lower court for further review, but believed the injunction on the ban should remain. He took issue with the standards of how waivers and exemptions to the EO were being made, noting that previous Executive Orders on immigration have used consistent standards for waivers, such as Executive Order 12172 under President
Jimmy Carter James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party (United States), Democratic Party, he previously served as th ...
banning immigrants from Iran. If the current EO ban was following its waiver system, that would strengthen the government's position that the ban was religiously neutral. However, he documented several cases where the waiver process under the EO had seemingly been inconsistent, weakening the government's position. Justice Breyer concluded that
Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial fact findings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assurance that the Proclamation does not rest upon a 'Muslim ban', and the assistance in deciding the issue that answers to the 'exemption and waiver' questions may provide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated.
If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias...a sufficient reason to set the Proclamation aside.
Justice
Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...
, joined by Justice
Ruth Bader Ginsburg Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by President ...
wrote a more scathing dissent, fully critical of the majority's opinion:
The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court's decision today fails to safeguard that fundamental principle. It 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.
Justice Sotomayor took issue with a perceived double standard that the Court held with the decision in ''
Masterpiece Cakeshop v. Colorado Civil Rights Commission ''Masterpiece Cakeshop v. Colorado Civil Rights Commission'', 584 U.S. ___ (2018), was a case in the Supreme Court of the United States that dealt with whether owners of public accommodations can refuse certain services based on the First Amendment ...
'', , which found that government officials had treated a defendant's freedom of religious exercise with hostility, demanding the case be reheard on a more neutral basis. She wrote that "Unlike in ''Masterpiece'', where the majority considered the state commissioners' statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President's charged statements about Muslims as irrelevant". Sotomayor further noted the parallels between this case and ''Korematsu'', acknowledging the legacy of that decision and the cautions that the dissenting judges there had made towards the threat to the Constitution as a result. Although she welcomed that the majority opinion had effectively jettisoned ''Korematsu'', she feared the decision of ''Trump'' "redeploys the same dangerous logic underlying ''Korematsu'' and merely replaces one 'gravely wrong' decision with another."


Reactions

After the Supreme Court decision, various protests were held around the United States, including one in front of the Supreme Court building in Washington, D.C. Additional protests were held in New York City, Seattle, Portland, and Atlanta.


References


External links

* {{caselaw source , case = ''Trump v. Hawaii'', {{ussc, volume=585, page=___, year=2018, docket=17-965, el=no , justia =https://supreme.justia.com/cases/federal/us/585/17-965/ , oyez =https://www.oyez.org/cases/2017/17-965 , other_source1 = Supreme Court (slip opinion) , other_url1 =https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
''Trump v. Hawaii''
at
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2018 in United States case law Donald Trump litigation United States Supreme Court cases United States Supreme Court cases of the Roberts Court