US Supreme Court upholds Trump Travel Ban

Trump v. Hawaii, 585 U.S. ___ (2018) (26 June 2018)


In a 5-4 decision, the Supreme Court has upheld the third iteration of President Trump’s ‘Travel Ban’.


President Trump issued three separate proclamations that were all popularly referred to as the Trump Travel Ban. All these proclamations were issued pursuant to § 1182(f) of the Immigration and Nationality Act (INA) which states:

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.

The first proclamation was issued in January 2017. This proclamation barred people from seven Muslim-majority nations (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) from entering the United States for 90 days. It was later blocked by federal courts.

The second proclamation was issued in June 2017. This version removed Iraq from the list of barred countries. This proclamation lapsed and was replaced by the third proclamation.

The third proclamation (Proclamation) was issued in September 2017 and became the subject of the Supreme Court’s recent opinion. It removed Sudan from the list but added Chad, North Korea and Venezuelan government officials. The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum and provides case-by-case waivers when a foreign national demonstrates undue hardship, and that his or her entry is in the national interest and would not pose a threat to public safety. 

The Proclamation directs the Department of Homeland Security to assess on a continuing basis whether the restrictions should be modified or continued and to report to the President every 180 days. Following completion of the first 180 day review period, President Trump determined that Chad had sufficiently improved its practices and removed restrictions on its nationals.

President Trump argued the Proclamation was justified on the basis that entry restrictions are necessary for nationals of states that have inadequate systems for managing and sharing information about their nationals.

The State of Hawaii, three individuals with foreign relatives affected by the entry suspension and the Muslim Association of Hawaii argued that the Proclamation violated the Immigration and Nationality Act (INA) and the First Amendment’s Establishment Clause (that provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof) because it was motivated not by concerns pertaining to national security but by hostility and animus towards Islam.


In a 5-4 ruling, the Supreme Court upheld the Proclamation.

Chief Justice Roberts delivered the opinion of the Court, joined by Justices Kennedy, Thomas, Alito and Gorsuch. Justices Kennedy and Thomas also filed concurring opinions.

Justice Sotomayor (joined by Justice Ginsburg) and Justice Breyer (joined by Justice Kagan) filed dissenting opinions.

The majority first considered the argument that the Proclamation exceeded the President’s authority under the INA. It held that, under § 1182(f), the President has ‘broad discretion’ to suspend the entry of non-citizens into the United States and that, by its terms, § 1182(f) exudes deference to the President in every clause.  Further, the Proclamation was the result of a ‘worldwide, multi-agency review’ that determined that entry by particular non-citizens would be detrimental to the United States.

In relation to the argument that the Proclamation violated the Establishment Clause, the majority stated regarding President Trump’s campaign statements: ‘we must consider not only the statements of a particular President, but also the authority of the Presidency itself’. The majority held that three features of the Proclamation supported the notion of the Proclamation being supported by a legitimate national security interest. First, since President Trump first introduced entry restrictions, three Muslim-majority countries (Iraq, Sudan and Chad) had been removed from the list of covered countries. Second, the Proclamation included ‘extensive exemptions’ for various categories of foreign nationals. Third, the Proclamation created a waiver program.

Justice Sotomayor's dissenting opinion contended the Proclamation was a violation of the First Amendment’s guarantee of religious neutrality and criticised the majority’s approach to the available evidence stating that, based on this evidence, ‘a reasonable observer would conclude that the Proclamation was motivated by hostility and animus towards the Muslim faith’. By way of example, she noted the following statements which were not expressly addressed in the majority judgment:

  • The formal statement on President Trump’s website (which remained on his campaign website until May 2017, several months into his Presidency) which stated: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States’.
  • That after President Trump signed the Proclamation he stated: ‘We all know what that means’.
  • That, on 29 November 2017 (ie, after the Proclamation was made), President Trump retweeted three anti-Muslim videos entitled ‘Muslim Destroys a Statue of Virgin Mary!’, ‘Islamist mob pushes teenage boy off roof and beats him to death!’ and ‘Muslim migrant beats up Dutch boy on crutches’.

Justice Breyer's dissenting opinion (joined by Justice Kagan) focused on the Proclamation’s system of exemptions and waivers. He contended that if the Proclamation was significantly affected by religious animus against Muslims, it would not be constitutional. However, if its sole purpose was national security, it was likely lawful. He reasoned that the ‘Proclamation’s elaborate system of exemptions and waivers can and should help us answer the question’. However, he suggested the limited available evidence indicated the government may not be applying the exemption and waiver programs as it purports to do so. He noted, by way of example, that the State Department reported that during the Proclamation’s first month, only 2 out of 6,555 waiver applicants were approved.

In light of the above, Justice Breyer indicated he would send the case back to the District Court for further proceedings, including regarding the impact of the exemptions and waivers.

A sign of decisions to come?

Justice Kennedy filed a short opinion in which he indicated he joined the majority opinion in full. However, Justice Kennedy noted separately:

There are numerous instances in which the statements and actions of Government officials are 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. That oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do.

Justice Kennedy recently announced his retirement from the Court after serving for over two decades. For years, he has been seen as the Court’s ‘swing vote,’ having authored decisions seen as victories for liberals (such as Obergefell v. Hodges, 576 U.S. ___ (2015) which held that the Fourteenth Amendment to the Constitution requires States of the United States to licence marriage equality) and conservatives (such as Gonzales v. Carhart, 550 U.S. 124 (2007) which upheld the Partial-Birth Abortion Ban Act of 2003).

With President Trump set to appoint Justice Kennedy’s successor, commentators are now predicting more decisions that will be hailed as victories by President Trump in the future.

The full text of the Supreme Court’s opinion can be found here.

Jeremy Rich is an Associate at Allens. Katie Gardiner is a Senior Associate at Allens.