On December 4, 2017, the U.S. Supreme Court permitted the most recent version of President Trump's executive action restricting the entry of nationals from certain countries to take effect. The decision stayed nationwide injunctions granted by two federal district courts on constitutional and statutory grounds.Footnote 1 This version of Trump's “travel ban,” (EO-3), issued on September 24, 2017, restricts the entry of nationals from Iran, Libya, Somalia, Syria, and Yemen—all of whom had been restricted under previous orders—as well as North Korea, Venezuela, and Chad.Footnote 2 While litigation continues in the Courts of Appeals for the Fourth and Ninth Circuits, the Trump administration fully implemented EO-3 by December 8.Footnote 3
Two earlier executive orders restricting the entry of certain nationals into the United States preceded EO-3.Footnote 4 The first iteration was an executive order signed January 27, 2017 (EO-1), which temporarily blocked the entry of citizens from seven Muslim-majority countries.Footnote 5 EO-1 also suspended for 120 days the U.S. Refugee Admissions Program (USRAP), the interagency effort to selectively identify and admit refugees for resettlement in the United States.Footnote 6
EO-1 sparked public outrage, with many arguing it was motivated by religious animus given certain comments made by Trump as a candidate. For example, in December 2015 he had called for a “total and complete shutdown of Muslims entering the United States.”Footnote 7 Several courts enjoined EO-1, deeming such presidential action to be in violation of the Establishment Clause and the Immigration and Nationality Act (INA) and questioning the motive behind the order by relying, in part, on Trump's statements.Footnote 8
On March 6, Trump issued a new executive order (EO-2), less than a month after the Ninth Circuit upheld a temporary restraining order against EO-1.Footnote 9 EO-2 temporarily suspended “the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers.”Footnote 10 Unlike its predecessor, EO-2 removed Iraq as a banned country, excluded lawful permanent residents, and eliminated preferential treatment of persons based on religious persecution.Footnote 11 EO-2 once again suspended the entry of refugees and decisions on applications for refugee status for 120 days.Footnote 12
Litigants who had challenged EO-1 quickly amended their claims in response to EO-2. District courts in Hawaii and Maryland enjoined the enforcement of EO-2, issuing a temporary restraining order and preliminary injunction respectively.Footnote 13 Both decisions were later upheld by appellate courts.Footnote 14 The Trump administration filed petitions for certiorari to the Supreme Court and requested stays, which were partially granted on June 26 in a per curiam order.Footnote 15 The Court's decision reinstated EO-2 but carved out an exception for those people who had a “bona fide relationship with a person or entity in the United States.”Footnote 16 In the months following the June 26 decision, the parties litigated the interpretation of this exception,Footnote 17 with the Supreme Court clarifying that this exception did not extend to refugees who had received formal assurances from resettlement agencies.Footnote 18
Although the Supreme Court was scheduled to hear oral arguments on EO-2 in October, Trump issued yet a third order, EO-3, that superseded it on September 24. Oral arguments were canceled, signaling “the beginning of the end for a politically charged legal case that could have produced a blockbuster ruling on the clash between presidential power and claims of religious discrimination.”Footnote 19 The Court then dismissed the last remaining EO-2 appeal on October 24—expressing no view on the merits—and vacated the Ninth Circuit's earlier decision upholding the temporary restraining order, such that it was no longer precedential.Footnote 20
Referencing his constitutional authority and power pursuant to the INA, Trump issued EO-3 to indefinitely restrict the immigrant and nonimmigrant entry into the United States of nationals from eight designated countries, subject to certain exceptions.Footnote 21 Its section 1 uses policy language similar to the first two orders, identifying the need to protect American citizens “from terrorist attacks and other public-safety threats.”Footnote 22 It refers to
a worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. This was the first such review of its kind in United States history.Footnote 23
The proclamation goes on to identify “global requirements for information sharing in support of immigration screening and vetting” by the secretary of Homeland Security to evaluate the practices and capabilities of foreign governments.Footnote 24 EO-3 lays out three categories of criteria that were used to evaluate the practices of foreign governments: (1) identity-management information; (2) national security and public-safety information; and (3) national security and public-safety risk assessment.Footnote 25 After evaluating “all foreign governments,” the practices of sixteen countries were identified as “inadequate,” and thirty-one were “at risk” of becoming “inadequate” based on the criteria.Footnote 26
Some countries made improvements following requests by the State Department,Footnote 27 but the performances of several were still considered “inadequate”:
After reviewing the Secretary of Homeland Security's report … and accounting for the foreign policy, national security, and counterterrorism objectives of the United States, I have determined to restrict and limit the entry of nationals of 7 countries found to be “inadequate” with respect to the baseline described [above]: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.Footnote 28
Section 2 of EO-3 outlines these restrictions, suspending indefinitely the entry of: nationals of Chad, Yemen, and Libya as immigrants or nonimmigrants on business and tourist visas;Footnote 29 nationals of Iran as immigrants or nonimmigrants, except those with valid student and exchange visitor visas;Footnote 30 nationals of North Korea and Syria as immigrants or nonimmigrants;Footnote 31 and Venezuelan government officials and their immediate family members as nonimmigrants on business or tourist visas.Footnote 32
Notably, although Iraq did not meet the established baseline, the secretary of Homeland Security recommended that Iraqi nationals could enter the United States under enhanced screening.Footnote 33 Conversely, while Somalia satisfied the baseline criteria, due to its identity-management deficiencies and “significant terrorist presence” in its territory, the entry of Somalis as immigrants was suspended and nonimmigrants became subject to enhanced scrutiny.Footnote 34
EO-3 identified several categorical exceptions to the travel restrictions, including lawful permanent residents, foreign nationals previously granted asylum in the United States or traveling on a diplomatic visa, dual citizens traveling using a passport from an unrestricted country, and anyone granted advance parole or protection under the Convention Against Torture.Footnote 35 Case-by-case waivers of the restrictions could be considered when appropriate, as well. A foreign national must demonstrate at a minimum three requirements for a waiver to be granted: (1) undue hardship; (2) that entry would not pose a threat to national security; and (3) that entry would be in the national interest.Footnote 36
Unlike the first two orders, EO-3 is imposed for an indefinite period. The secretary of Homeland Security is instructed to “assess whether any suspensions and limitations imposed … should be continued, terminated, modified, or supplemented,” and to submit a report to the president every 180 days.Footnote 37 According to officials, the restrictions will continue until the affected countries can “demonstrate their ability to deliver the information requested by the United States.”Footnote 38 EO-3 immediately entered into effect for foreign nationals affected by EO-2 who lacked a bona fide connection to the United States. For those affected by EO-2 with a bona fide relationship, as well as for nationals of Chad, North Korea, and Venezuela, the restrictions entered into effect on October 18.Footnote 39
EO-3 did not separately restrict the entry of refugees, but soon after its issuance Trump announced the “American First Refugee Program.”Footnote 40 This program capped refugee admission to 45,000 for the 2018 fiscal year, less than half of the 110,000 cap that President Obama had set for 2017 and indeed the lowest cap since 1980.Footnote 41 The White House specifically identified financial concerns as the basis for the decision, while Trump had proclaimed more generally in EO-2 that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States.”Footnote 42 On October 24, Trump signed an executive order to resume a revised USRAP. Although the USRAP vetting process was deemed “generally adequate,” that program would resume with enhanced security measures to “certain categories of refugees whose entry continues to pose potential threats.”Footnote 43 News reports indicate that applications from citizens of eleven countries would be subjected to an additional ninety-day suspension, subject to certain exceptions.Footnote 44
Legal challenges to EO-3 quickly arose throughout the country. Plaintiffs in Hawaii v. Trump filed a motion for a nationwide temporary restraining order (TRO)—except with respect to North Korean and Venezuelan nationalsFootnote 45 —on October 10. The motion was granted by the Hawaii district court on October 17.
Judge Watson on the Hawaii district court issued the TRO after determining that each plaintiff satisfied standing requirements and alleged justiciable claims under the INA.Footnote 46 His decision did not reach the constitutional claims.
Section 1182(f) of the INA provides that:
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 … for such period as he shall deem necessary, suspend the entry of all aliens of any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.Footnote 47
Section 1185(a)(1) prohibits, unless otherwise ordered by the president, “any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the president may prescribe.”Footnote 48
According to Judge Watson, because the “findings are inconsistent with and do not fit the restrictions that the order actually imposes, and because EO-3 improperly uses nationality as a proxy for risk,” plaintiffs would likely succeed on the merits of their INA claims.Footnote 49 He outlined three main reasons why plaintiffs were likely to prevail specifically under Sections 1182(f) and 1185(a):
[First,] EO-3 is simultaneously overbroad and underinclusive. … Second, EO-3 does not reveal why existing law is insufficient to address the President's described concerns. … Third, EO-3 contains internal incoherencies that markedly undermine its stated “national security” rationale.Footnote 50
Plaintiffs in the same case had also brought a claim under INA Section 1152(a), which prohibits nationality-based discrimination in the issuance of immigrant visas.Footnote 51 While the government argued this provision did not limit presidential authority otherwise granted in the statute, the court, citing the Ninth Circuit opinion regarding EO-2, disagreed:
[A]sserted now with respect to EO-3, the Government's position untenably contradicts the Ninth[] Circuit's holding. In short, EO-3 plainly violates Section 1152(a) by singling out immigrant visa applicants seeking entry to the United States on the basis of nationality.Footnote 52
Like prior courts that had reviewed EO-1 and EO-2, the Hawaiian district court order also continued to rely on statements made by Trump suggesting religious animus, which the court deemed to undercut the proffered national security interests underlying the orders.Footnote 53
The White House described the lower court actions to block enforcement of EO-3 as “dangerously flawed, … undercut[ting] the President's efforts to keep the American people safe and enforce minimum security standards for entry.”Footnote 54 On appeal, the Ninth Circuit stayed the district court's TRO for foreign nationals who did not have a bona fide relationship within the United States.Footnote 55
A Maryland district court similarly enjoined enforcement of EO-3 on October 17, except with respect to nationals of Venezuela and North Korea and persons who lacked a bona fide relationship within the United States.Footnote 56 The injunction was granted based on their INA and Establishment Clause claims. Unlike the Hawaii district court, the Maryland district court determined that the plaintiffs had only demonstrated a likelihood of success on the merits on their INA claim that EO-3 violates the non-discrimination provision of that law's Section 1152(a).Footnote 57 Despite “compelling arguments that the Proclamation's nationality-based restrictions are not actually necessary,” the district court could not conclude plaintiffs were likely to prevail under Section 1182(f):
[T]here is no requirement that a § 1182(f) entry restriction meet more stringent standards found elsewhere in the law. … The text of § 1182(f) does not even require the President to find that suspending the entry of a class of aliens would be detrimental to national security, only that it is detrimental to the interests of the United States.Footnote 58
Further, while the court reasoned that presidential authority exercised pursuant to Section 1182(f) was subject to judicial review and that there must be “some limit on § 1182(f) authority,” it found that those limits were not clear and that therefore the plaintiffs were not likely to succeed on that INA claim.Footnote 59
For these reasons, the Maryland district court proceeded to address the constitutional issues raised by the plaintiffs and focused in particular on their Establishment Clause claim. Although the court noted that the national security interest of EO-3 was “facially legitimate,” it found this interest pretextual:
Plaintiffs, however, assert that the Proclamation's proffered national security rationale is not the true motivation behind the restrictions, but is instead a pretext for anti-Muslim bias. In support of their assertion of bad faith, Plaintiffs, as part of their challenge to EO-2, previously offered President Trump's statements during his presidential campaign calling for a “Muslim ban”; his statements that he would fulfill his campaign promise of a Muslim ban by focusing on territories rather than religion; EO-1, adopted without agency consultation, which targeted only majority-Muslim countries and contained preferences for religious minorities within those countries; and statements of President Trump and his advisors that EO-2 had the same policy goals as EO-1. Plaintiffs also pointed to the continued focus in EO-2 on countries with majority-Muslim populations, and what they asserted was a lack of correlation between the stated national security aims of EO-2 and the mechanisms outlines to achieve it. Based on these facts, this Court concluded that the primary purpose for EO-2 was to effect the equivalent of a Muslim ban. The Court now reaffirms that finding for purposes of this present analysis. … This combined record provides facts that plausibly allege with sufficient particularity an affirmative showing of bad faith in the stated rationale for the Proclamation.Footnote 60
Next, the court analyzed whether EO-3 violated the Establishment Clause under the Lemon framework, which requires that: (1) an act must have a secular purpose; (2) its principal/primary effect must neither advance nor inhibit religion; and (3) it must not foster excessive government entanglement with religion.Footnote 61 Relying heavily on public statements made by Trump as a candidate and as president, the court found that the government could not establish that the primary purpose of EO-3 was not religious animus, in violation of the Establishment Clause.Footnote 62
While the Hawaii and Maryland court orders turned on U.S. national law, some scholars argued that EO-3 (like its predecessors) violated international law as well. In an amicus brief filed in November, for example, some international law scholars and nongovernmental organizations reiterated arguments that they had made against the earlier versions of EO-3. Specifically, they argued that such executive action violates two human rights treaties to which the United States is a party:
Discrimination based on religion or national origin is prohibited by the International Covenant on Civil and Political Rights (“CCPR”) … . Restrictions on travel and entry caused by the EO that impose disparate and unreasonable burdens on the exercise of this right violate CCPR article 2. … The International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) also bars discrimination based on national origin. … The Proclamation thus makes an explicit distinction based on national origin that, unless necessary and narrowly tailored to achieve a legitimate government aim, would violate U.S. obligations under international law.Footnote 63
These arguments were not raised in the amended complaints or in the court decisions regarding EO-3.
On December 4, the Supreme Court stayed both lower court orders enjoining the enforcement of EO-3 while the government's appeals remained pending in the Fourth and Ninth Circuits.Footnote 64 The Supreme Court's orders noted that Justices Ginsburg and Sotomayor would have denied the stay requests.Footnote 65 Unlike the Court's previous order staying injunctions of EO-2, there was no carveout permitting the continued entry of foreign nationals who had a “bona fide relationship” within the United States.
After considering the government's appeal of the Hawaii district court's preliminary injunction order, the Ninth Circuit on December 22 determined that EO-3 violated the INA with respect to foreign nationals with a bona fide relationship in the United States.Footnote 66 But given the Supreme Court's December 4 order, the court opted to “stay our decision today pending Supreme Court review.”Footnote 67 The panel of judges found that Trump “exceed[ed] the scope of his delegated authority,” and that EO-3 “once again conflicts with the INA's prohibition on nationality-based discrimination.”Footnote 68
The Ninth Circuit further held that EO-3 violated separation-of-powers principles and the statutory framework of the INA because “the Constitution gives Congress the primary, if not exclusive, authority to set immigration policy.”Footnote 69 Specifically:
[W]hen, as here, a presidential proclamation addresses only matters of immigration already passed upon by Congress, the President's § 1182(f) authority is at its nadir. … by suspending entry of a class of 150 million potentially admissible aliens, [EO-3] sweeps broader than any past entry suspension and indefinitely nullifies existing immigration law as to multiple countries. The Proclamation does so in the name of addressing general public-safety and terrorism threats, and what it deems to be foreign countries’ inadequate immigration-related practices—concerns that Congress has already addressed.Footnote 70
The panel did not reach the plaintiffs’ Establishment Clause claims.Footnote 71
Litigants challenging EO-3 are likely to continue to use comments made by Trump. Indeed, after Trump shared “three inflammatory anti-Muslim videos posted by a far-right British activist” on November 29, Neal Katyal, one of the lawyers representing Hawaii in Hawaii v. Trump, suggested that such actions could bolster their case.Footnote 72 Questions during oral argument in the Fourth Circuit similarly suggested these statements could continue to be relevant. For example, after Deputy Assistant Attorney General Hashim Mooppan acknowledged that Trump's tweets were official statements of the president, but argued they were legally irrelevant, Judge Wynn asked if the judges should “just ignore reality” in light of the videos Trump shared.Footnote 73 Judge Motz further noted: “The President has continued to make statements that some people regard to be anti-Muslim after the issuance of this order. Should we be surprised that it might be construed as an anti-Muslim order?”Footnote 74 While the Ninth Circuit did not reference such comments in its most recent opinion on December 22, it remains to be seen if and how such comments will ultimately factor into U.S. national court decisions on the merits.
