Debating Trump’s Travel Ban: United States’ Argument


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 executive order revising the previous order. The new order, which indefinitely bans travel from the countries identified in the previous order and adds to new 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.

On October 5, the Colleges of Law “travel ban” debate will go forward as planned. 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, issued on September 24, 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 the United States’ arguments related to the President’s authority to issue the March 6 Executive Order.

The United States

Presented by Dayton Aldrich and Halle Blackwell

The United States contends that the courts below erred when they found that the President exceeded his authority when he issued the Order. According to the United States, the Order neither violates the federal constitution nor exceeds the President’s authority under the immigration statute.

Immigration and Nationality Act

The United States asserts the President has the authority to reject immigrants because that authority has been given in the INA. In 1952, § 212(f) of the INA was amended to give the President the power to suspend the entry of all or any class of aliens that are detrimental to the United States. The United States maintains that the President is allowed to distinguish a class of people who are detrimental for the protection of national security. President Trump did not overextend his Executive authority and acted within his Presidential power given to him by federal law and the Immigration and Nationality Act (INA).

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

The Ninth Circuit Court of Appeals erroneously required that the President must articulate a detailed factual basis to “support the conclusion that entry of all nationals” whose entry he suspends “would be harmful to the national interest.” That requirement turns the statute on its head. Section 1182(f)’s language authorizing the President “by proclamation” to suspend or restrict entry “whenever [he] finds that [it] would be detrimental to the interests of the United States,” 8 U.S.C. §1182(f), does not constrain the President’s authority. To the contrary, it confirms the breadth of his discretion. Congress placed no restrictions on which “interests” count or what “detriments” suffice for the President to invoke his authority. The statute expressly contemplates that the President may make these determinations on a broad scale, authorizing him to “suspend the entry of all aliens or any class of aliens.”

Further, the United States would argue that our country is in a national security crisis and that we have been engaged in the Global War on Terror since September 11, 2001. Recently, with terror attacks in Boston Massachusetts, San Bernardino California, and Orlando Florida, there can be no doubt that America is still engaged in the Global War on Terror. Deference is especially warranted when the President’s determinations concerning whether to suspend the entry of aliens, decisions that directly implicate his foreign-affairs and national-security powers and responsibilities. The President generally need not “disclose” his “reasons for deeming nationals of a particular country a special threat,” Reno v. American- Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (AAADC), which may rest on classified or sensitive material.

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

Hawaii incorrectly argues that the Order violates § 202(a) [8 U.S.C. 1152] of the INA because there can be no discrimination based on nationality in the issuance of visas.
Section 1152(a) does not compel the issuance of a visa to an alien who is validly barred from entering the country, including under a suspension proclamation issued pursuant to §1182(f ). A visa allows an alien to obtain transportation to the United States and seek admission at a port of entry. Congress has directed that a visa may not be issued if the applicant is ineligible to receive a visa under §1182. Section 1182 lists many such grounds for ineligibility, among them health, criminal history, and terrorist affiliation. Whatever the relevant underlying reason in any individual case, the alien is denied a visa because he is ineligible to enter under §1182.

Thus, if an alien is subject to the Order and does not qualify for a waiver, he is denied an immigrant visa because he is ineligible to receive one as someone barred from entering the country under §1182(f )—not because he is suffering the type of nationality-based discrimination prohibited by §1152(a). Section 1152(a) is only concerned with the allocation of visas among aliens who are eligible to receive them.

Section 1157

Hawaii claims that the order violates §1157(a)(2) when he reduced the number of refugees allowed in the country. Section 1157 establishes a procedure for setting the maximum number of refugees who may be admitted each fiscal year. 8 U.S.C. § 1157(a)(2). It provides that “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.” Section 1157 sets only the number who “may be admitted,” not a number who must be admitted. Although the President cannot increase mid-year the number of refugees who may be admitted without “appropriate consultation,” nothing in the statute requires that the maximum number of refugees set at the beginning of the fiscal year actually be admitted, or prohibits the President from allowing only a smaller number. In any given year, a smaller number than the annual ceiling might be admitted for many reasons such as budgetary constraints, logistical concerns, or foreign-relations issues. In fact, the number of refugees actually admitted routinely falls well below the predetermined cap. For example in the United States briefs, there is evidence that from 2001 to 2012, the number of refugees admitted fell short of the annual cap by an average of nearly 21,000, and in 2002 and 2003 fewer than half of the then-authorized 70,000 refugees were admitted.

The Order Does Not Violate Establishment Clause

The United States’ asserts that the Order does not violate the First Amendment’s Establishment Clause because it does not discriminate on the basis of religion. The Supreme Court has stated that to violate the Clause, a government action must be “with the ostensible and predominant purpose of advancing religion.” McCreary County v. ACLU, 545 U.S. 844, 860 (2005).

The United States argues that the order’s explicit, religion-neutral objective is to address the risk that potential terrorists might exploit possible weaknesses in the Nation’s screening and vetting procedures. That “secular purpose” formally stated by the President for a facially neutral policy cannot properly be deemed a “sham” or “merely secondary to a religious objective” McCreary 545 U.S. at 860.

In judging the government’s true “object” in the context of a Free Exercise Clause claim, the Supreme Court has also looked to the law’s “operation.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 . Here, the Order’s “operation” confirms its stated purpose. The Order’s entry suspension applies to six countries based on risk, not religion; and the suspension applies to all nationals in those countries irrespective of religion. Likewise, the Order’s refugee suspension is equally neutral toward religion, applying to all refugees without regard to their religion.

The Supreme Court has further stated that it may not overturn the Executive’s exclusion of aliens based on a “facially legitimate and bona fide reason.” Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). Sections 2 and 6 of the Order are facially neutral with respect to religion and amply supported by national-security determinations in the Order itself such as the risk of erroneously permitting entry of a national from one of the six countries who intend to commit terrorist acts or otherwise harm the national security of the United States.