The NCSL Blog


By Lisa Soronen

In a 5-4 decision in Trump v. Hawaii, the U.S. Supreme Court ruled in favor of President Donald Trump’s travel ban.

Two sisters whose father was detained by ICE agents, console one another outside the Supreme Court after the travel ban ruling.CreditTom Brenner/The New York TimesThe third travel ban indefinitely prevents immigration from six countries: Chad, Iran, Libya, North Korea, Syria and Yemen. Hawaii and others sued Trump, saying the ban was illegal and unconstitutional.

The court agreed to decide four issues. First, whether the case is justiciable, meaning whether the legal issues are “fit for review.” Second, whether the third travel ban exceeds the president’s authority under the Immigration and Nationality Act (INA). Third, whether the travel ban violates the Establishment Clause because it seeks to exclude Muslims. Fourth, whether the 9th U.S. Circuit Court of Appeals nationwide injunction was overbroad.

The third travel ban restricted entry of nationals of countries “whose systems for managing and sharing information about their nationals the president deemed inadequate.” While campaigning for office and during his tenure, including after the third travel ban was adopted, the president and various advisers made anti-Muslim statements and indicated the travel bans were designed to exclude Muslims from the U.S.

The Supreme Court, in an opinion written by Chief Justice John Roberts, assumed without deciding that plaintiffs could challenge the travel ban under the INA. The INA allows the president to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.” According to the court this statute “exudes deference to the president in every clause,” and the travel ban falls “well within” the statute.

The court explains:  “[The president] first ordered [the Department of Homeland Security] and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. The president then issued a proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments— several of which are state sponsors of terrorism—deprive the government of ‘sufficient information to assess the risks [those countries’ nationals] pose to the United States.

"Based on that review, the president found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information—both to protect national security and public safety, and to induce improvement by their home countries.”

The court concluded the plaintiffs had standing to challenge the travel ban as violating the Establishment Clause because it has kept them separated from overseas relatives. The court described the anti-Muslim statements of the president and his advisers but stated the issue before the court “is not whether to denounce the statements.”

Because this case involved a “national security directive regulating the entry of aliens abroad” the court only applied “rational basis review” where it would uphold the travel ban “so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” According to the court, “It cannot be said that it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’ ”

Justice Anthony Kennedy joined the majority opinion in full but issued a stern warning to government officials who act with discriminatory animus:  “[t]here 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.”

The State and Local Legal Center (SLLC) filed an amicus brief arguing in favor of lower federal courts’ authority to issue injunctive relief that benefits nonparties, pointing out such injunctions are extremely common and especially important where federalism is at stake.

The court didn’t rule on the “propriety of the nationwide scope of the injunction” because it reversed the lower court’s grant of an injunction.

Stuart Banner of the UCLA School of Law Supreme Court Clinic wrote the SLLC amicus brief which the following organizations joined: the National League of Cities, the International City/County Management Association, and the International Municipal Lawyers Association.

Lisa Soronen is Executive Director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.