Case No. 17-965 | 9th Cir.
The Court takes up one of the most anticipated cases this term: President Trump’s travel ban. This second iteration of the travel ban limits travel from eight countries. Hawaii challenged both this and the first order, arguing that each constitutes a violation of federal law and the Constitution. The Ninth Circuit agreed and imposed an injunction on the enforceability of the Executive Order. The Government is asking the Supreme Court to stay the injunction.
First, the Court will deal with justiciability. The Government argues that the statutory claims are not justiciable, saying that the Constitution gives the President wide latitude to limit the entry of immigrants to the United States when it is determined to be in the national interest. The Government relies on Supreme Court precedent stating that it is not within any court’s power to review determinations of the political branch to exclude aliens, unless Congress allows for review, which it has not done. Hawaii argues that the order is justiciable because its resident, Dr. Elshikh, has standing through the injury to his ability to practice his religion, and that Hawaii has standing because the Order injures its ability to recruit and retain faculty for its universities and accept refugees. Additionally, Hawaii argues that this is reviewable because the challenge concerns policies that injure American citizens and states, and not an individual consular decision, which would not normally be reviewable.
Second, the Court will deal with whether the order violates the Establishment Clause. The rationale behind the ban, the Government says, is that the countries named do not share enough information with the United States to make a determination about the risks that their nationals pose. Hawaii argues that the rationale behind the ban is to fulfill President Trump’s campaign promise to enact a ban on Muslims, and argues that this makes the Executive Order unconstitutional under the Establishment Clause. Hawaii says that implementation of the Order would have separated families, disturbed business and research opportunities, and prevented refugees from finding safety in the United States. Specifically, Hawaii argues that its Muslim residents would be separated from their loved ones and Hawaii’s welcoming and diverse reputation would be hurt due to the order’s animus toward a religious group.
The Government relies heavily on separation-of-powers arguments, while Hawaii relies on the discriminatory nature of President Trump’s tweets and speeches both on the campaign trail and during his presidency. Will the Court defer to the Executive Branch and determine that a president has unreviewable power to exclude aliens, even if based on religion? Or will the Court take a First Amendment approach and determine that the order was unconstitutional because it was enacted based on religious animus? This decision will certainly impact the other immigration issues that could be on the Court’s plate, such as the termination of the DACA program and funding to sanctuary cities.