Debating Trump’s Travel Ban: Hawaii’s Argument

On October 5, four Colleges of Law students will debate two of the issues surrounding President Trump’s travel ban. Representing Hawaii will be Paul Sexton and Esmeralda Murillo.

On October 10, the Supreme Court of the United States was scheduled to hear oral arguments regarding President Trump’s Executive Order banning the entry of nationals from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) and reducing the number of refugees admitted into this country from 110,000 to 50,000.

On September 24, the Court canceled the hearing after President Trump issued a new proclamation revising the previous order. The new order, which indefinitely bans travel from the countries identified in the previous order and adds two additional countries to the list–Venezuela and North Korea–will require fresh legal scrutiny. The Court asked lawyers involved in the original case to present briefs on whether and to what extent the new order renders the case moot.
 
The original case, Hawaii v. Trump, involves multiple complex statutory and constitutional questions. The United States District Court for the District of Hawaii issued an injunction that was later affirmed, with slight modification, by the Ninth Circuit Court of Appeals. The United States appealed those decisions, among others, to the Supreme Court.
 
Nonetheless, the Colleges of Law “travel ban” debate will go forward as planned. On October 5, four Colleges of Law students will debate two of the issues raised by the parties in that case. Does the order exceed the president’s authority under the Immigration and Nationality Act and does the order violate the First Amendment’s Establishment Clause by discriminating on the basis of religion? These issues focus on §§ 2 and 6 of the Order. Section 2 initiates a 90-day entry ban to the United States for nationals of six Muslim-majority countries. (Iran, Libya, Somalia, Sudan, Syria and Yemen). Section 6 of the executive order suspends the United States Refugee Admissions Program for 120 days and reduces the number of refugees to be admitted from 110,000 to 50,000 in the fiscal year 2017.
 
Although President Trump’s new proclamation may alter the trajectory of the case, the students will continue to focus on the original arguments before the court.
Below is a summary of Hawaii’s arguments related to the president’s authority to issue the March 6 executive order. The student authors were assigned a party to represent.

The State of Hawaii

Presented by Paul Sexton and Esmeralda Murillo

Hawaii argues that the executive order exceeds the president’s authority under the Immigration and Nationality Act and that it violates the Establishment Clause of the First Amendment of the United States Constitution.

The Executive Order Violates the INA

Hawaii asserts that the executive order violates three sections of the Immigration and Nationality Act.

A. Section 212 (f) [U.S.C. 1182(f)]

The United States argues that §212(f) gives the president full discretion and limitless power in deciding who is allowed to enter the country and more importantly who is not allowed to enter the country. Hawaii asserts that this is incorrect. The clause gives the president flexible but not limitless power. That power lies with Congress.

The language of section 212 (f) originated in 1918 during World War I. The United States was in a state of emergency so Congress gave the president some authority over immigration that would enable him to respond “swiftly” to threats (albeit hesitantly). The executive branch, with every executive order passed since then, has been careful not to overstep the narrow authority given to it, and has only used this power in times of crisis. The United States, at this time, is not in a state of emergency, therefore there is no need for the president to respond “swiftly” to threats.

Section (f) “borrows its language-and, therefore, takes its meaning- from a series of wartime statutes, proclamations, and regulations,” therefore, the president must comply with the limitations of those statutes, proclamations, and regulations.

When looking at the language of those statutes, they granted the president the power to exclude ‘aliens akin to subversives; and aliens who would undermine congressional policy during an exigency.” Zemel v. Rusk, 381 U.S 1, 17 (1965). The president exceeds his authority because he cannot reasonably claim that the 165 million people from six different countries are all “akin to subversives” or that they will “undermine congressional policy during exigency”.

Hawaii asserts that by interpreting the statute in light of the wartime laws and regulations preserves the separation of immigration powers: Congress retains the exclusive authority to set policy in the normal course, while the president may act to advance that policy in “changeable and explosive” times. This separation of powers is necessary and must be protected. Immigration is a complex subject and Congress has already established an intricate system designed for “identifying, vetting and excluding potential terrorists.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 375 (2000).

Hawaii further asserts that there is an inherent danger to the United States’ interpretation. Under the United States’ theory, the executive branch would have the power to abolish immigration altogether. The president need only assert that the he deems all foreign nationals as potential “subversives” to end legal immigration completely.

B. Section 202 [8 U.S.C. 1152]

Hawaii also argues that the Order violates §202(a) of the INA. This section states that there can be no discrimination based on nationality in the issuance of visas. The order violates this statute in section 2(c) stating that aliens cannot receive immigrant visas if they are “nationals of the six listed countries.” This language directly contradicts the statute.

The United States argues that section 2(c) of EO-2 is lawful because it discriminates in “entry”, not visa issuance. This argument fails because the sole purpose of visa is to allow entry. As the United States concedes in its brief, if the United States denies visas, they deny entry.

C. Section 207 [8. U.S.C. 1157]

Hawaii also claims that the order violates section 1157(a)(2). That provision states “The number of refugees who may be admitted in any fiscal year shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation”.

In September 2016, before the beginning of the fiscal year, President Obama set the number of refugees at 110,000. In January, months after the fiscal year began, President Trump changed the number of refugees allowed to enter the country 50,000.

Congress spoke clearly in the statute about when the number must be identified. While President Trump is free to alter that number for the next fiscal year, he does not have the authority to change it in the middle of the fiscal year.

The Order Violates the Establishment Clause

Hawaii argues that the order was enacted for the unconstitutional purposes of excluding Muslims.

The Establishment Clause of the First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” (U.S. Const., 1st Amend.) Therefore, “the Establishment Clause creates both an individual right and a structural constraint on governmental power.” Brief of Respondents -Appellee at p. 32, Trump v. International Refugee Assistance Project, No. 16-1540 (Supreme Ct. Sep. 11, 2017) Ultimately, the Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. Arkansas, 393 U.S. 97, 104 (1963). “When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 860 (2005).

In this case, Hawaii alleges that sections 2 and 6 of President Trump’s second executive order violate the Establishment Clause because they structurally deviate from the “central…value of official religious neutrality” by banning immigrants from six Muslim-majority countries. Id. They state that “excluding immigrants of a dissenting faith [is] a prime means of establishing a religion.” Brief of Respondents -Appellee at 22, Trump v. International Refugee Assistance Project, No. 16A-1191 (Supreme Ct. June 12, 2017). In essence, they assert that President Trump’s executive order serves to uphold the established, religious majority in America by limiting the admittance of immigrants from Muslim-majority countries. To support this claim, Hawaii points to religiously biased statements made by the President in regard to banning Muslims while he was campaigning and while he was in office to show that his executive order lacked neutrality and thus violated the Establishment Clause. Then-candidate Trump asserted that “Islam hates us” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” (Brief of Respondents -Appellee at 2, Trump v. International Refugee Assistance Project, No. 16-1540 (Supreme Ct. Sep. 11, 2017). Hawaii is urging the Supreme Court to consider the President’s purpose, as illustrated by his statements, in creating the executive order. Such a consideration, in their view, is necessary to establish the actual intent of the order and that the President’s actual intent was to create an executive order disfavoring Muslim immigration based on religion which would violate the First Amendment.

President Trump contends that these statements are inadmissible and cannot be considered by the courts in determining whether his executive order violates the Establishment Clause. To support his contention, he relies on a Supreme Court decision that held, when the “Executive exercises this power…on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion….” Kleindienst v. Mandel (1972) 408 U.S. 753, 770.

In essence, President Trump maintains that the courts cannot look behind the exercise of his discretion in implementing his executive order because the executive order was enacted in the name of national security, and was expressed on the basis of nationality and not on the basis of religious animus. Therefore, he asserts the courts below have abused their authority by relying on statements he made while campaigning and while in office to determine the validity of his order, instead of limiting the scope of their interpretation to the plain meaning of the executive order itself.