By Darianne De Leon
The topic of immigration and the development of our country’s immigration policy has generally been a back-burner agenda item for the President of the United States.[1] This tendency, however, was drastically different for President Donald Trump.[2] During the election and thereafter, through his use of social media and otherwise, Donald Trump made clear his perspective on the immigrant population inside and outside of the United States.[3] In 2017, Donald Trump signed into effect Executive Order 13780 and Presidential Proclamation 9645, both of which aimed to further intensify the already-tedious and thorough vetting process for foreign nationals attempting to enter the United States based on their country of origin.[4] All of these circumstances resulted in the Supreme Court’s opinion in Trump v. Hawaii, a troubling decision that disintegrates the very essence of what it means to live in America.[5]
The combination of President Trump’s Executive Order 13780 and Presidential Proclamation 9645 resulted in what was termed a “Muslim Ban,” since the orders targeted foreign nationals from Muslim countries including Iran, Libya, Somalia, Syria, and Yemen, in addition to Venezuela and North Korea.[6] Almost instantly after President Trump signed the executive order, hundreds of Muslims, including green card holders, were forbidden to enter the United States in various airports in New York; Washington, DC; and San Francisco.[7] These circumstances led to protests locally and internationally.[8] President Trump’s response to the backlash of the “Muslim Ban” was a mere explanation that the policies were intended to protect Americans by enhancing vetting procedures and national security, which did not explain why his new procedures targeted individuals from specific nations, all of which have a prominent Muslim population.[9]
Following the ban, the American Civil Liberties Union filed a nationwide temporary injunction to block the deportation proceedings in all U.S. airports under President Trump’s new Muslim ban; the ACLU-WA then filed an amicus brief seeking to have key provisions of the executive order declared unconstitutional.[10] Key issues discussed in the brief include the fact that the executive order affected travelers and large cross-sections of legal residents; the order separated and destabilized families; the order harmed students; and the order did not help to prevent terrorism were highlighted in the brief.[11] On February 3, 2017, United States District Court Judge James Robart issued an order temporarily blocking President Donald Trump’s Muslim ban executive order nationwide.[12] Several states challenged the executive order, leading the administration to make adjustments to the executive order to fit within the confines of the Constitution.[13] Finally, on June 26, 2018, in a 5-4 ruling, the Supreme Court upheld the constitutionality of Trump’s final version of the executive order.[14]
In Trump v. Hawaii, the Supreme Court held that neither President Trump’s executive order nor his presidential proclamation were unconstitutional because both represented comprehensive delegation.[15] The phrase “comprehensive delegation” is used by the Court to emphasize the president’s power to delegate based on subjective evaluation.[16] The majority uses the Immigration and Nationality Act (INA) to support its decision—specifically, § 1182(f).[17] Section 1182(f) delegates complete deference to the president, entrusting him to decide “whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.”[18] Moreover, the Supreme Court used § 1182(f) to justify the president’s specificity as to which nationalities should be withheld from entering the United States.[19] For example, the president first ordered the Department of Homeland Security (DHS) and other agencies to conduct thorough information and risk assessments, which suggested that Muslim-majority countries pose a national risk to the United States.[20] Additionally, the Supreme Court concluded that “the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government . . . largely immune from judicial control.’”[21]
Under the Establishment Clause, the government is prohibited from using religion as a vessel for creating policy or establishing an official religion.[22] Citing Larson v. Valente, among other Supreme Court cases, the Supreme Court in Trump v. Hawaii reinforced the idea that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”[23] However, it failed to apply the facts of the case to properly hold that this ban violated the Establishment Clause, despite the plaintiffs’ convincing argument that President Trump used the executive order to camouflage his intent to prevent Muslims from entering the United States.[24]
In her Trump v. Hawaii dissent, Justice Sonia Sotomayor concluded that the Court and our country failed to “safeguard” the fundamental principle of freedom of religion, based not only on precedent but also on then-candidate Trump’s promises and direct efforts to discriminate as president.[25] Moreover, Justices Sotomayor and Ruth Bader Ginsburg agreed that using the president’s words and evidence on the record was sufficient to prove that the presidential proclamation violated the Establishment Clause and was motivated by anti-Muslim animus.[26] Justice Sotomayor noted the Court must ask whether “a reasonable observer would view the government action as enacted for the purpose of disfavoring a religion.”[27] On December 7, 2015, then-candidate Trump issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.”[28] Moreover, during his presidential campaign, he pledged publicly on several occasions that, if elected, he “would ban Muslims from entering the United States.”[29] In an interview, President Trump compared his Muslim policy to President Franklin Delano Roosevelt’s treatment toward Japanese-Americans, noting that they both “did the same thing.”[30] Finally, in March 2016, President Trump expressed his belief that “Islam hates us . . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.”[31]
Trump v. Hawaii was not the first time an executive order based on discrimination has been upheld. In 1942, President Franklin Roosevelt signed Executive Order 9066; the order authorized the Secretary of War to remove people of Japanese ancestry from military areas and surrounding communities in the United States.[32] The order led to over 120,000 Japanese persons being held in detention camps because of their nationality.[33] The order was subsequently challenged. In Korematsu v. United States, the Supreme Court ruled in a 6-3 decision that the detention was a “military necessity” not based on race.[34] Although the Supreme Court, in dicta, essentially overturned Korematsu in Trump v. Hawaii, the opinions essentially have the same effect.[35] Both Trump v. Hawaii and Korematsu v. United Statesrepresent an abrasive reality. While historically the United States of America has prided itself on being a “melting pot” of religion, culture, and nationality, executive decisions create an exception to a fundamental American principle: acceptance without persecution. While Trump v. Hawaii was decided almost a year ago, Muslim immigrants still face the ramifications. For example, a waiver program was developed to evaluate visa applicants wanting to enter the United States from specific Muslim-majority countries such as Iran, Libya, Somalia, Syria, and Yemen.[36]
Freedom, the notion of independence—these are the reasons why many flee their countries and risk their lives to enter the United States. Historically, the United States has exemplified the pillar of freedom—a nation in which anyone and everyone can practice their own religion and express themselves freely without government persecution. The founders of our country understood the importance of fundamental natural rights — rights that could not be determined based on policy, amicus, favoritism, xenophobia or governmental action. The Supreme Court’s decision to dismiss the potential Establishment Clause violation in Trump v. Hawaiisimultaneously dismissed the fundamental freedoms upon which this country was built. The dismissal enforced the idea that creating nation-wide policy based on religion is now accepted so long as executive power deems it necessary to enforce national security. More importantly, the Supreme Court’s decision is a problematic precedent for upholding the exercise of executive power that may violate the First Amendment—a deference that should frighten and concern every citizen of this nation.
[1] See Douglas S. Massey & Karen A. Pren, Unintended Consequences of US Immigration Policy: Explaining the Post-1965 Surge from Latin America, 38 Population and Dev. Rev. 1, 2 (2012) (arguing that traditionally presidential candidates don’t center their presidential campaign on immigration, but President Trump did).
[2] See also Int’l Refugee Assistance Project v. Trump, 857 F.3d 544, 594 (4th Cir. 2017). See generally Philip L. Martin, Election of Donald Trump and migration, 14:1 Migration Letters 161, 161 (2017) (quoting Donald Trump’s as stating, “[Mexican immigrants] are bringing drugs. They are bringing crime. They’re rapists . . . but some, I assume, are good people.”).
[3] See generally Sarah Pierce & Andrew Selee, Migration Policy Inst., Immigration under Trump: A Review of Policy Shifts in the Year Since the Election 1 (Dec. 2017) (emphasizing Trump “making immigration the centerpiece of his campaign . . . pledging that he would implement ‘the wall’ and ‘extreme’ vetting”).
[4] See Exec. Order No. 13,780, 3 C.F.R. § 13209 (2017) (explaining that the order was intended to “improve the screening and vetting protocols and procedures associated with the visa-issuance process”).
[5] See id. at 2392 (holding that the President used his presidential delegation power to suspend entry by aliens from countries that would be detrimental to the interests of the United States).
[6] See Exec. Order No. 13,780, 3 C.F.R. § 13209 (2017) (explaining that these countries had an influx of national security risks to the United States based on the President’s opinion).
[7] Thousands Protest Against Trump Travel Ban in Cities And Airports Nationwide, Guardian News & Media (Apr. 6, 2017, 9:30 PM), https://www.theguardian.com/us-news/2017/jan/29/protest-trump-travel-ban-muslims-airports.
[8] See generally Barbara Demick, Thousands at JFK Airport in New York Protest New Visa and Refugee Suspensions, L.A. Times (Mar. 31, 2019, 7:30 PM), https://www.latimes.com/politics/washington/la-na-trailguide-updates-thousands-at-jfk-airport-in-new-york-1485642642-htmlstory.html.
[9] Adam Liptak and Michael D. Shear, Trump’s Travel Ban Is Upheld by Supreme Court, N.Y. Times (Apr.5, 2019, 7:00 PM), https://www.nytimes.com/2018/06/26/us/politics/supreme-court-trump-travel-ban.html.
[10] Brief for Petitioner at 4-8, Washington v. Trump, 847 F.3d 1151 (9th Circ. 2017) (No. 2:17-cv-00141).
[11] See id.
[12] See Timeline of the Muslim Ban, ACLU Wash. (Mar. 31, 2019, 9:25 PM), https://www.aclu-wa.org/pages/timeline-muslim-ban.
[13] See generally Lewis Kamb, 11 States Will Challenge Trump’s New Immigration Executive Order in Court, GOVERNING (Mar. 31, 2019, 8:35 PM), https://www.governing.com/topics/public-justice-safety/tns-states-lawsuit-trump-immigrant-children.html.
[14] See Timeline of the Muslim Ban, supra note 12.
[15] See Trump v. Hawaii, 138 S. Ct. 2392, 2400 (2018) (explaining that under §1182(f), the President lawfully has broad discretional power to suspend the entry of aliens in the United States).
[16] See id. at 2400.
[17] See id.
[18] See id.
[19] See id.
[20] See Trump v. Hawaii, 138 S. Ct. 2392, 2402 (2018).
[21] See id. (explaining that the Supreme Court applied a rational basis review to discern “whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes”).
[22] U.S. Const. amend. I.
[23] Larson v. Valente, 456 U. S. 228, 244 (1982).
[24] See Trump v. Hawaii, 138 S. Ct. 2392, 2400 (2018).
[25] See id. (Sotomayor, J., dissenting) (explaining that based on the evidence presented in this case, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus).
[26] See id.
[27] See id. at 2435.
[28] See Donald J. Trump, President of the United States, Presidential Campaign Speech at Mount Pleasant, South Carolina (Dec. 7, 2015).
[29] See Trump v. Hawaii, 138 S. Ct. 2392, 2433 (2018) (Sotomayor, J., dissenting); see alsoDonald J. Trump, supra note 18.
[30] Morning Joe(MSNBC Network television broadcast Dec. 8, 2015).
[31] CNN’s Anderson Cooper 360° (CNN Network television broadcast Mar. 16, 2016).
[32] See Exec. Order No. 9066 (1942).
[33] See id. at 243.
[34] See id.at 227.
[35] See Trump v. Hawaii, 138 S. Ct. at 2423.
[36] See generally Berardi Immigration Law, Present and Future Implications of Trump v. Hawaii Ruling, Berardi Immigration Law (June 28, 2018), https://berardiimmigrationlaw.com/present-and-future-implications-of-trump-v-hawaii-ruling/.