- [Man] On April 25th, the United States Supreme Court
will hear oral argument on the long awaited
travel ban case, also known as Trump versus Hawaii.
The story began on January 27th, 2017,
when President Trump issued an executive order
entitled Protecting the Nation From Foreign
Terrorist Entry into the United States or EO-1.
The order suspended the entry of foreign nationals
from seven predominately muslim countries for 90 days.
During that time, the Secretary of Homeland Security
would assess whether foreign governments provided
enough information to properly screen foreign nationals
applying for United States visas.
The stated purpose was, "To protect the American people
"from terrorist attacks by foreign nationals
"admitted to the United States."
Following a successful legal challenge to EO-1,
on March sixth, the president issued a second
executive order known as EO-2.
This second order imposed a similar 90 day suspension
on entry from Iran, Libya, Somalia, Sudan, Syria, and Yemen.
But unlike the first order, EO-2 gave certain countries
an opportunity to alter their practices
before the secretary recommended final entry restrictions.
The second executive order was again met
with successful legal challenges.
Then on September 15th, the Secretary of Homeland Security
submitted a report to the president recommending
entry restrictions for nationals from eight countries.
Nine days later, President Trump issued the proclamation
at issue in the current case.
Relying on the secretary's report and in consultation
with the attorney general and secretaries of state
and defense, the proclamation declares that the entry
of certain foreign nationals from eight countries
would be harmful to the national interest
and imposes tailored restrictions on entry
by nationals of those countries.
The proclamation provides for some exceptions
for foreign nationals from certain countries
who can demonstrate undue hardship, that their entry
would pose no threat, and that their entry
would be in the public interest.
The proclamation also requires the agencies
to continually assess whether entry restrictions
should be changed and to report to the president
every 180 days.
On October 10th, challengers to the original order
saw to amend their complaint to include
allegations against the proclamation.
The district court entered a nationwide
preliminary injunction, which the ninth circuit affirmed.
The Supreme Court granted cert.
The case before the court involves four main issues.
The first two, justiciability and the nationwide injunction,
ask the court to review the case's procedural history
and the power of lower courts
to issue such broad injunctions.
In addition to these issues, the case involves
two major statutory and constitutional issues.
The first issue relates tot he president's authority
under the immigration and nationality act or INA.
The INA is the federal statute providing the basic
framework for immigration to the United States.
The government argues that the proclamation
is a valid exercise of presidential authority under the INA.
According to the government, the act gives the president
sweeping power to suspend or restrict entry of aliens
and the proclamation was a lawful exercise
of that authority.
Based on express findings and review by multiple agencies,
the president determined that allowing entry
of certain aliens would be detrimental
to the national interest.
Contrary to the lower court rulings, no more detailed
adjustification was necessary.
Requiring anything further, the government argues,
would be inconsistent with the text, context,
and long standing practices under the act.
In response, the challengers counter that the proclamation
exceeds the president's authority.
They say that the INA, naturally read,
permits the president to temporarily halt the admission
of a group of aliens who share some characteristic
inconsistent with the immigration laws.
They contend that the proclamation goes too far
by banning, "A sprawling group of 150 million aliens
"who share nothing in common but nationality."
Moreover, they assert that the proclamation
is contrary to the act's purposes because it discriminates
by nationality and targets entire countries for exclusion.
And because the proclamation is a perpetual ban
it violates the act's requirements that the president
restrict entry only for a limited time.
In addition to their statutory arguments,
the challengers also claim that the proclamation
raises constitutional concerns.
They say that the proclamations amounts
to a line-item veto over the immigration code,
which threatens to violate the separation of powers
inherent in our constitutional structure.
A second major issue deals with the first
amendment's establishment clause.
The government argues that the proclamation
is consistent with the establishment clause.
Under the court's 1972 decision in Kleindienst versus Mandel
the government need only provide a facially legitimate
reason for excluding aliens from entry.
The government claims that the proclamation's
entry restrictions are tailored to individual
countries' circumstances and are based on
the president's judgment on national security
and foreign policy matters.
The government asserts that the deferential
Kleindienst standard prevents the court
from looking behind the president's stated policy
judgments for an impermissible religious motivation.
By this view, President Trump's tweets
and other public statements would be inappropriate
extrinsic material to consider.
Instead, the government emphasizes that the proclamation
is neutral on its face with regard to religion
and that the multi agency process that produced
the proclamation confirms that it wasn't motivated
by religious animus.
In response, the challengers contend that Kleindienst
deference is inappropriate in a case like this,
where the president is exercising broad
policy making power to achieve an unconstitutional purpose.
On the merits of the establishment clause
they point to a, "Voluminous record of statements
"announcing the president's aim of excluding muslims
"from the United States."
Arguing against the application of Kleindienst deference,
the challengers say that the court should
open its eyes to this overwhelming evidence
of religious animus.
Trump versus Hawaii is easily the most high profile
case of the term.
It involves important legal issues including those
related to presidential authority,
statutory interpretation, immigration policy,
and religious tolerance.
In addition, the court's decision
will have tangible effects.
Trump versus Hawaii will spark political debates
and legal debates, but the decision's effect
on real people and real institutions
may represent the case's greatest significance. .