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Legally Trumped: Travel Ban Upheld by Divided U.S. Supreme Court

Noel Peel

Written by

Noel Peel


January 30, 2019

By Josh Taylor

On Tuesday, June 26, 2018, a 5-4 Supreme Court majority upheld President Donald J. Trump’s 2017 Executive Order No. 13780 (referred to as “EO-2” in the Court’s opinion). The case, Trump v. Hawaii, 585 U. S. __ (2018), split the Court along its expected partisan lines with Chief Justice John Roberts penning the majority opinion, in which Justices Kennedy, Thomas, Alito, and Gorsuch joined. Justice Breyer dissented and was joined by Justice Kagan; Justice Sotomayor dissented separately and was joined by Justice Ginsburg. Not long after the opinion was released, it became apparent that it was one of the last for Justice Kennedy, who will retire from the Court at the end of this term. The Court was asked to determine two things: (1) whether the President had authority under the Immigration and Nationality Act (“INA”) to issue EO-2; and (2) whether the “travel ban” of EO-2 violates the First Amendment’s Establishment Clause.

Does the President Have Statutory Authority to Issue EO-2? Yes.
The Court held that President Trump does have the requisite authority under the INA to issue EO-2. Court watchers will not find this ruling surprising, as the Supreme Court has historically and admittedly exercised extreme deference to the Executive on matters of foreign relations and national security. Indeed, the majority highlighted “the deference traditionally accorded the President in this sphere,” and hearkened to Obama-era language to clarify its stance: “[W]hen the President adopts ‘a preventive measure . . . in the context of international affairs and national security,’ he is ‘not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.’” Trump, 585 U.S. __ (quoting and citing Holder v. Humanitarian Law Project, 561 U. S. 1, 35 (2010)).

The Court analyzed EO-2 against the textual structure of the INA. Ultimately, all arguments based on overreaching the text of the INA fell flat with the majority. The principal source of analysis was §1182(f), which says: “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). The Court found nothing in the text caging President Trump’s authority exercised in EO-2. Relatedly, the Court refused to expand its analysis into statutory structure and legislative purpose in order to limit the INA’s plain language. To the Court, arguments based on those two lines of analysis do not “justif[y] departing from the clear text of the statute.” Trump, 585 U.S. __.

Does EO-2 Contravene the Establishment Clause? No.
The Court next addressed claims of Constitutional violations and found none. Namely, Hawaii and its co-plaintiffs argued that EO-2 was in effect a “Muslim ban” which disfavored a religion, thereby violating the Establishment Clause of the First Amendment. See id. (“Plaintiffs believe that the Proclamation [EO-2] violates this prohibition by singling out Muslims for disfavored treatment.”). Again, the Court afforded immense deference to the President on foreign matters: “The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf.” Id. An interesting discussion of standing to sue resulted in the Court determining that plaintiffs indeed had standing for a “concrete injury: the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country.” Id.

The Court discussed candidate and President Trump’s statements regarding a “Muslim ban” to inform its standard of review, and decided to “look behind the face of the Proclamation to the extent of applying rational basis review.” Id. Under that standard, the weakest on the Court’s scrutiny spectrum, EO-2’s travel ban must be “plausibly related to the Government’s stated objective to protect the country and improve vetting processes” to be Constitutionally valid. Id. Again, the Court pointed out its extreme deference to the Executive under this standard: “Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny.” Id. The Court reasoned through its rational basis analysis and ultimately held that “the Government has set forth a sufficient national security justification to survive rational basis review.” Id. Staying with the pattern of this session’s divided cases, the “conservative” majority “express[ed] no view on the soundness of the policy.” Id.

Kennedy’s Parting Words, Thomas, and the Dissents
Justice Kennedy, in perhaps his last published words as a Supreme Court Justice, wrote separately to chide inappropriate speech and remind public officials of their duty to uphold the Constitution. “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.” Id. (Kennedy, J., concurring). Indeed, “[a]n anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.” Id.

Justice Thomas wrote separately to restate his distaste for universal injunctions issues by federal courts. Justice Breyer’s dissent stated that “evidence of antireligious bias” was present to the extent that EO-2 should be set aside. Justice Sotomayor’s lengthy dissent focused on President Trump’s words calling for a “total and complete shutdown of Muslims entering the United States.” Id. (Sotomayor, J., dissenting). Her dissent, which joins the ranks of Justice Scalia’s most passionate, ended with her succinct point: “Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.” Id.

You can read the Court’s full opinion, concurrences, and dissents here. Hear the full oral arguments from April 25, 2018, thanks to

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