Trump v. Hawaii ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.
v. HAWAII ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 17–965. Argued April 25, 2018—Decided June 26, 2018
In September 2017, the President issued Proclamation No. 9645, seek-
ing to improve vetting procedures for foreign nationals traveling to
the United States by identifying ongoing deficiencies in the infor-
mation needed to assess whether nationals of particular countries
present a security threat. The Proclamation placed entry restrictions
on the nationals of eight foreign states whose systems for managing
and sharing information about their nationals the President deemed
inadequate. Foreign states were selected for inclusion based on a re-
view undertaken pursuant to one of the President’s earlier Executive
Orders. As part of that review, the Department of Homeland Securi-
ty (DHS), in consultation with the State Department and intelligence
agencies, developed an information and risk assessment “baseline.”
DHS then collected and evaluated data for all foreign governments,
identifying those having deficient information-sharing practices and
presenting national security concerns, as well as other countries “at
risk” of failing to meet the baseline. After a 50-day period during
which the State Department made diplomatic efforts to encourage
foreign governments to improve their practices, the Acting Secretary
of Homeland Security concluded that eight countries—Chad, Iran,
Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained
deficient. She recommended entry restrictions for certain nationals
from all of those countries but Iraq, which had a close cooperative re-
lationship with the U. S. She also recommended including Somalia,
which met the information-sharing component of the baseline stand-
ards but had other special risk factors, such as a significant terrorist
presence. After consulting with multiple Cabinet members, the Pres-
ident adopted the recommendations and issued the Proclamation.
2 TRUMP v. HAWAII
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Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he de-
termined that certain restrictions were necessary to “prevent the en-
try of those foreign nationals about whom the United States Gov-
ernment lacks sufficient information” and “elicit improved identity-
management and information-sharing protocols and practices from
foreign governments.” The Proclamation imposes a range of entry re-
strictions that vary based on the “distinct circumstances” in each of
the eight countries. It exempts lawful permanent residents and pro-
vides case-by-case waivers under certain circumstances. It also di-
rects DHS to assess on a continuing basis whether the restrictions
should be modified or continued, and to report to the President every
180 days. At the completion of the first such review period, the Pres-
ident determined that Chad had sufficiently improved its practices,
and he accordingly lifted restrictions on its nationals.
Plaintiffs—the State of Hawaii, three individuals with foreign rela-
tives affected by the entry suspension, and the Muslim Association of
Hawaii—argue that the Proclamation violates the Immigration and
Nationality Act (INA) and the Establishment Clause. The District
Court granted a nationwide preliminary injunction barring enforce-
ment of the restrictions. The Ninth Circuit affirmed, concluding that
the Proclamation contravened two provisions of the INA: §1182(f),
which authorizes 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,” and §1152(a)(1)(A),
which provides that “no person shall . . . be discriminated against in
the issuance of an immigrant visa because of the person’s race, sex,
nationality, place of birth, or place of residence.” The court did not
reach the Establishment Clause claim.
Held:
1. This Court assumes without deciding that plaintiffs’ statutory
claims are reviewable, notwithstanding consular nonreviewability or
any other statutory nonreviewability issue. See Sale v. Haitian Cen-
ters Council, Inc., 509 U. S. 155. Pp. 8–9.
2. The President has lawfully exercised the broad discretion grant-
ed to him under §1182(f) to suspend the entry of aliens into the Unit-
ed States. Pp. 9–24.
(a) By its terms, §1182(f) exudes deference to the President in
every clause. It entrusts to the President the decisions whether and
when to suspend entry, whose entry to suspend, for how long, and on
what conditions. It thus vests the President with “ample power” to
impose entry restrictions in addition to those elsewhere enumerated
in the INA. Sale, 509 U. S., at 187. The Proclamation falls well with-
in this comprehensive delegation. The sole prerequisite set forth in
§1182(f) is that the President “find[ ]” that the entry of the covered al-
Cite as: 585 U. S. ____ (2018) 3
Syllabus
iens “would be detrimental to the interests of the United States.”
The President has undoubtedly fulfilled that requirement here. He
first ordered DHS and other agencies to conduct a comprehensive
evaluation of every single country’s compliance with the information
and risk assessment baseline. He then issued a Proclamation with
extensive findings about the deficiencies and their impact. Based on
that review, he found that restricting entry of aliens who could not be
vetted with adequate information was in the national interest.
Even assuming that some form of inquiry into the persuasiveness
of the President’s findings is appropriate, but see Webster v. Doe, 486
U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings
cannot be sustained. The 12-page Proclamation is more detailed
than any prior order issued under §1182(f). And such a searching in-
quiry is inconsistent with the broad statutory text and the deference
traditionally accorded the President in this sphere. See, e.g., Sale,
509 U. S., at 187–188.
The Proclamation comports with the remaining textual limits in
§1182(f). While the word “suspend” often connotes a temporary de-
ferral, the President is not required to prescribe in advance a fixed
end date for the entry restriction. Like its predecessors, the Procla-
mation makes clear that its “conditional restrictions” will remain in
force only so long as necessary to “address” the identified “inadequa-
cies and risks” within the covered nations. Finally, the Proclamation
properly identifies a “class of aliens” whose entry is suspended, and
the word “class” comfortably encompasses a group of people linked by
nationality. Pp. 10–15.
(b) Plaintiffs have not identified any conflict between the Proc-
lamation and the immigration scheme reflected in the INA that
would implicitly bar the President from addressing deficiencies in the
Nation’s vetting system. The existing grounds of inadmissibility and
the narrow Visa Waiver Program do not address the failure of certain
high-risk countries to provide a minimum baseline of reliable infor-
mation. Further, neither the legislative history of §1182(f) nor his-
torical practice justifies departing from the clear text of the statute.
Pp. 15–20.
(c) Plaintiffs’ argument that the President’s entry suspension vio-
lates §1152(a)(1)(A) ignores the basic distinction between admissibil-
ity determinations and visa issuance that runs throughout the INA.
Section 1182 defines the universe of aliens who are admissible into
the United States (and therefore eligible to receive a visa). Once
§1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits
discrimination in the allocation of immigrant visas based on national-
ity and other traits. Had Congress intended in §1152(a)(1)(A) to con-
strain the President’s power to determine who may enter the country,
4 TRUMP v. HAWAII
Syllabus
it could have chosen language directed to that end. Common sense
and historical practice confirm that §1152(a)(1)(A) does not limit the
President’s delegated authority under §1182(f). Presidents have re-
peatedly exercised their authority to suspend entry on the basis of
nationality. And on plaintiffs’ reading, the President would not be
permitted to suspend entry from particular foreign states in response
to an epidemic, or even if the United States were on the brink of war.
Pp. 20–24.
3. Plaintiffs have not demonstrated a likelihood of success on the
merits of their claim that the Proclamation violates the Establish-
ment Clause. Pp. 24–38.
(a) The individual plaintiffs have Article III standing to chal-
lenge the exclusion of their relatives under the Establishment
Clause. A person’s interest in being united with his relatives is suffi-
ciently concrete and particularized to form the basis of an Article III
injury in fact. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. Pp. 24–26.
(b) Plaintiffs allege that the primary purpose of the Proclamation
was religious animus and that the President’s stated concerns about
vetting protocols and national security were but pretexts for discrim-
inating against Muslims. At the heart of their case is a series of
statements by the President and his advisers both during the cam-
paign and since the President assumed office. The issue, however, is
not whether to denounce the President’s statements, but the signifi-
cance of those statements in reviewing a Presidential directive, neu-
tral on its face, addressing a matter within the core of executive re-
sponsibility. In doing so, the Court must consider not only the
statements of a particular President, but also the authority of the
Presidency itself. Pp. 26–29.
(c) The admission and exclusion of foreign nationals is a “funda-
mental sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.” Fiallo v. Bell,
430 U. S. 787, 792. Although foreign nationals seeking admission
have no constitutional right to entry, this Court has engaged in a cir-
cumscribed judicial inquiry when the denial of a visa allegedly bur-
dens the constitutional rights of a U. S. citizen. That review is lim-
ited to whether the Executive gives a “facially legitimate and bona
fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769,
but the Court need not define the precise contours of that narrow in-
quiry in this case. For today’s purposes, the Court assumes that it
may look behind the face of the Proclamation to the extent of apply-
ing rational basis review, i.e., whether the entry policy is plausibly
related to the Government’s stated objective to protect the country
and improve vetting processes. Plaintiffs’ extrinsic evidence may be
considered, but the policy will be upheld so long as it can reasonably
Cite as: 585 U. S. ____ (2018) 5
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be understood to result from a justification independent of unconsti-
tutional grounds. Pp. 30–32.
(d) On the few occasions where the Court has struck down a policy
as illegitimate under rational basis scrutiny, a common thread has
been that the laws at issue were “divorced from any factual context
from which [the Court] could discern a relationship to legitimate
state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclama-
tion does not fit that pattern. It is expressly premised on legitimate
purposes and says nothing about religion. The entry restrictions on
Muslim-majority nations are limited to countries that were previous-
ly designated by Congress or prior administrations as posing national
security risks. Moreover, the Proclamation reflects the results of a
worldwide review process undertaken by multiple Cabinet officials
and their agencies. Plaintiffs challenge the entry suspension based
on their perception of its effectiveness and wisdom, but the Court
cannot substitute its own assessment for the Executive’s predictive
judgments on such matters. See Holder v. Humanitarian Law Pro-
ject, 561 U. S. 1, 33–34.
Three additional features of the entry policy support the Govern-
ment’s claim of a legitimate national security interest. First, since
the President introduced entry restrictions in January 2017, three
Muslim-majority countries—Iraq, Sudan, and Chad—have been re-
moved from the list. Second, for those countries still subject to entry
restrictions, the Proclamation includes numerous exceptions for vari-
ous categories of foreign nationals. Finally, the Proclamation creates
a waiver program open to all covered foreign nationals seeking entry
as immigrants or nonimmigrants. Under these circumstances, the
Government has set forth a sufficient national security justification
to survive rational basis review. Pp. 33–38.
878 F. 3d 662, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., and THOMAS,
J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in
which KAGAN, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in
which GINSBURG, J., joined.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–965
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Under the Immigration and Nationality Act, foreign
nationals seeking entry into the United States undergo a
vetting process to ensure that they satisfy the numerous
requirements for admission. The Act also vests the Presi-
dent with authority to restrict the entry of aliens when-
ever he finds that their entry “would be detrimental to the
interests of the United States.” 8 U. S. C. §1182(f). Rely-
ing on that delegation, the President concluded that it was
necessary to impose entry restrictions on nationals of
countries that do not share adequate information for an
informed entry determination, or that otherwise present
national security risks. Presidential Proclamation No.
9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The
plaintiffs in this litigation, respondents here, challenged
the application of those entry restrictions to certain aliens
abroad. We now decide whether the President had author-
ity under the Act to issue the Proclamation, and whether
the entry policy violates the Establishment Clause of the
First Amendment.
2 TRUMP v. HAWAII
Opinion of the Court
I
A
Shortly after taking office, President Trump signed
Executive Order No. 13769, Protecting the Nation From
Foreign Terrorist Entry Into the United States. 82 Fed.
Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary of
Homeland Security to conduct a review to examine the
adequacy of information provided by foreign governments
about their nationals seeking to enter the United States.
§3(a). Pending that review, the order suspended for 90
days the entry of foreign nationals from seven countries—
Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—
that had been previously identified by Congress or prior
administrations as posing heightened terrorism risks.
§3(c). The District Court for the Western District of Wash-
ington entered a temporary restraining order blocking the
entry restrictions, and the Court of Appeals for the Ninth
Circuit denied the Government’s request to stay that
order. Washington v. Trump, 847 F. 3d 1151 (2017) (per
curiam).
In response, the President revoked EO–1, replacing it
with Executive Order No. 13780, which again directed a
worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2).
Citing investigative burdens on agencies and the need to
diminish the risk that dangerous individuals would enter
without adequate vetting, EO–2 also temporarily restricted
the entry (with case-by-case waivers) of foreign nationals
from six of the countries covered by EO–1: Iran, Libya,
Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a). The
order explained that those countries had been selected
because each “is a state sponsor of terrorism, has been
significantly compromised by terrorist organizations, or
contains active conflict zones.” §1(d). The entry re-
striction was to stay in effect for 90 days, pending comple-
tion of the worldwide review.
These interim measures were immediately challenged in
Cite as: 585 U. S. ____ (2018) 3
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court. The District Courts for the Districts of Maryland
and Hawaii entered nationwide preliminary injunctions
barring enforcement of the entry suspension, and the
respective Courts of Appeals upheld those injunctions,
albeit on different grounds. International Refugee Assis-
tance Project (IRAP) v. Trump, 857 F. 3d 554 (CA4 2017);
Hawaii v. Trump, 859 F. 3d 741 (CA9 2017) (per curiam).
This Court granted certiorari and stayed the injunctions—
allowing the entry suspension to go into effect—with
respect to foreign nationals who lacked a “credible claim of
a bona fide relationship” with a person or entity in the
United States. Trump v. IRAP, 582 U. S. ___, ___ (2017)
(per curiam) (slip op., at 12). The temporary restrictions
in EO–2 expired before this Court took any action, and we
vacated the lower court decisions as moot. Trump v.
IRAP, 583 U. S. ___ (2017); Trump v. Hawaii, 583 U. S.
___ (2017).
On September 24, 2017, after completion of the world-
wide review, the President issued the Proclamation before
us—Proclamation No. 9645, Enhancing Vetting Capabili-
ties and Processes for Detecting Attempted Entry Into the
United States by Terrorists or Other Public-Safety
Threats. 82 Fed. Reg. 45161. The Proclamation (as its
title indicates) sought to improve vetting procedures by
identifying ongoing deficiencies in the information needed
to assess whether nationals of particular countries present
“public safety threats.” §1(a). To further that purpose, the
Proclamation placed entry restrictions on the nationals of
eight foreign states whose systems for managing and
sharing information about their nationals the President
deemed inadequate.
The Proclamation described how foreign states were
selected for inclusion based on the review undertaken
pursuant to EO–2. As part of that review, the Department
of Homeland Security (DHS), in consultation with the
State Department and several intelligence agencies,
4 TRUMP v. HAWAII
Opinion of the Court
developed a “baseline” for the information required from
foreign governments to confirm the identity of individuals
seeking entry into the United States, and to determine
whether those individuals pose a security threat. §1(c).
The baseline included three components. The first,
“identity-management information,” focused on whether a
foreign government ensures the integrity of travel docu-
ments by issuing electronic passports, reporting lost or
stolen passports, and making available additional identity-
related information. Second, the agencies considered the
extent to which the country discloses information on crim-
inal history and suspected terrorist links, provides travel
document exemplars, and facilitates the U. S. Govern-
ment’s receipt of information about airline passengers and
crews traveling to the United States. Finally, the agencies
weighed various indicators of national security risk,
including whether the foreign state is a known or potential
terrorist safe haven and whether it regularly declines to
receive returning nationals following final orders of
removal from the United States. Ibid.
DHS collected and evaluated data regarding all foreign
governments. §1(d). It identified 16 countries as having
deficient information-sharing practices and presenting
national security concerns, and another 31 countries as “at
risk” of similarly failing to meet the baseline. §1(e). The
State Department then undertook diplomatic efforts over
a 50-day period to encourage all foreign governments to
improve their practices. §1(f ). As a result of that effort,
numerous countries provided DHS with travel document
exemplars and agreed to share information on known or
suspected terrorists. Ibid.
Following the 50-day period, the Acting Secretary of
Homeland Security concluded that eight countries—Chad,
Iran, Iraq, Libya, North Korea, Syria, Venezuela, and
Yemen—remained deficient in terms of their risk profile
and willingness to provide requested information. The
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
Acting Secretary recommended that the President impose
entry restrictions on certain nationals from all of those
countries except Iraq. §§1(g), (h). She also concluded that
although Somalia generally satisfied the information-
sharing component of the baseline standards, its “identity-
management deficiencies” and “significant terrorist pres-
ence” presented special circumstances justifying additional
limitations. She therefore recommended entry limitations
for certain nationals of that country. §1(i). As for Iraq,
the Acting Secretary found that entry limitations on its
nationals were not warranted given the close cooperative
relationship between the U. S. and Iraqi Governments and
Iraq’s commitment to combating ISIS. §1(g).
After consulting with multiple Cabinet members and
other officials, the President adopted the Acting Secre-
tary’s recommendations and issued the Proclamation.
Invoking his authority under 8 U. S. C. §§1182(f ) and
1185(a), the President determined that certain entry
restrictions were necessary to “prevent the entry of those
foreign nationals about whom the United States Govern-
ment lacks sufficient information”; “elicit improved identity-
management and information-sharing protocols and
practices from foreign governments”; and otherwise “ad-
vance [the] foreign policy, national security, and counter-
terrorism objectives” of the United States. Proclamation
§1(h). The President explained that these restrictions
would be the “most likely to encourage cooperation” while
“protect[ing] the United States until such time as im-
provements occur.” Ibid.
The Proclamation imposed a range of restrictions that
vary based on the “distinct circumstances” in each of the
eight countries. Ibid. For countries that do not cooperate
with the United States in identifying security risks (Iran,
North Korea, and Syria), the Proclamation suspends entry
of all nationals, except for Iranians seeking nonimmigrant
student and exchange-visitor visas. §§2(b)(ii), (d)(ii),
6 TRUMP v. HAWAII
Opinion of the Court
(e)(ii). For countries that have information-sharing defi-
ciencies but are nonetheless “valuable counterterrorism
partner[s]” (Chad, Libya, and Yemen), it restricts entry of
nationals seeking immigrant visas and nonimmigrant
business or tourist visas. §§2(a)(i), (c)(i), (g)(i). Because
Somalia generally satisfies the baseline standards but was
found to present special risk factors, the Proclamation
suspends entry of nationals seeking immigrant visas and
requires additional scrutiny of nationals seeking nonim-
migrant visas. §2(h)(ii). And for Venezuela, which refuses
to cooperate in information sharing but for which alterna-
tive means are available to identify its nationals, the
Proclamation limits entry only of certain government
officials and their family members on nonimmigrant busi-
ness or tourist visas. §2(f )(ii).
The Proclamation exempts lawful permanent residents
and foreign nationals who have been granted asylum.
§3(b). It also provides for case-by-case waivers when a
foreign national demonstrates undue hardship, and that
his entry is in the national interest and would not pose a
threat to public safety. §3(c)(i); see also §3(c)(iv) (listing
examples of when a waiver might be appropriate, such as
if the foreign national seeks to reside with a close family
member, obtain urgent medical care, or pursue significant
business obligations). The Proclamation further directs
DHS to assess on a continuing basis whether entry re-
strictions should be modified or continued, and to report to
the President every 180 days. §4. Upon completion of the
first such review period, the President, on the recommen-
dation of the Secretary of Homeland Security, determined
that Chad had sufficiently improved its practices, and he
accordingly lifted restrictions on its nationals. Presiden-
tial Proclamation No. 9723, 83 Fed. Reg. 15937 (2018).
B
Plaintiffs in this case are the State of Hawaii, three
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
individuals (Dr. Ismail Elshikh, John Doe #1, and John
Doe #2), and the Muslim Association of Hawaii. The State
operates the University of Hawaii system, which recruits
students and faculty from the designated countries. The
three individual plaintiffs are U. S. citizens or lawful
permanent residents who have relatives from Iran, Syria,
and Yemen applying for immigrant or nonimmigrant
visas. The Association is a nonprofit organization that
operates a mosque in Hawaii.
Plaintiffs challenged the Proclamation—except as
applied to North Korea and Venezuela—on several
grounds. As relevant here, they argued that the Procla-
mation contravenes provisions in the Immigration and
Nationality Act (INA), 66 Stat. 187, as amended. Plain-
tiffs further claimed that the Proclamation violates the
Establishment Clause of the First Amendment, because it
was motivated not by concerns pertaining to national
security but by animus toward Islam.
The District Court granted a nationwide preliminary
injunction barring enforcement of the entry restrictions.
The court concluded that the Proclamation violated two
provisions of the INA: §1182(f ), because the President did
not make sufficient findings that the entry of the covered
foreign nationals would be detrimental to the national
interest, and §1152(a)(1)(A), because the policy discrimi-
nates against immigrant visa applicants on the basis of
nationality. 265 F. Supp. 3d 1140, 1155–1159 (Haw.
2017). The Government requested expedited briefing and
sought a stay pending appeal. The Court of Appeals for the
Ninth Circuit granted a partial stay, permitting enforce-
ment of the Proclamation with respect to foreign nationals
who lack a bona fide relationship with the United States.
This Court then stayed the injunction in full pending
disposition of the Government’s appeal. 583 U. S. ___
(2017).
The Court of Appeals affirmed. The court first held that
8 TRUMP v. HAWAII
Opinion of the Court
the Proclamation exceeds the President’s authority under
§1182(f ). In its view, that provision authorizes only a
“temporary” suspension of entry in response to “exigen-
cies” that “Congress would be ill-equipped to address.”
878 F. 3d 662, 684, 688 (2017). The court further reasoned
that the Proclamation “conflicts with the INA’s finely
reticulated regulatory scheme” by addressing “matters of
immigration already passed upon by Congress.” Id., at
685, 690. The Ninth Circuit then turned to §1152(a)(1)(A)
and determined that the entry restrictions also contravene
the prohibition on nationality-based discrimination in the
issuance of immigrant visas. The court did not reach
plaintiffs’ Establishment Clause claim.
We granted certiorari. 583 U. S. ___ (2018).
II
Before addressing the merits of plaintiffs’ statutory
claims, we consider whether we have authority to do so.
The Government argues that plaintiffs’ challenge to the
Proclamation under the INA is not justiciable. Relying on
the doctrine of consular nonreviewability, the Government
contends that because aliens have no “claim of right” to
enter the United States, and because exclusion of aliens is
“a fundamental act of sovereignty” by the political branches,
review of an exclusion decision “is not within the province
of any court, unless expressly authorized by law.” United
States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–
543 (1950). According to the Government, that principle
barring review is reflected in the INA, which sets forth a
comprehensive framework for review of orders of removal,
but authorizes judicial review only for aliens physically
present in the United States. See Brief for Petitioners 19–
20 (citing 8 U. S. C. §1252).
The justiciability of plaintiffs’ challenge under the INA
presents a difficult question. The Government made
similar arguments that no judicial review was available in
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
Sale v. Haitian Centers Council, Inc., 509 U. S. 155 (1993).
The Court in that case, however, went on to consider on
the merits a statutory claim like the one before us without
addressing the issue of reviewability. The Government
does not argue that the doctrine of consular nonreview-
ability goes to the Court’s jurisdiction, see Tr. of Oral Arg.
13, nor does it point to any provision of the INA that
expressly strips the Court of jurisdiction over plaintiffs’
claims, see Sebelius v. Auburn Regional Medical Center,
568 U. S. 145, 153 (2013) (requiring Congress to “clearly
state[]” that a statutory provision is jurisdictional). As a
result, we may assume without deciding that plaintiffs’
statutory claims are reviewable, notwithstanding consular
nonreviewability or any other statutory nonreviewability
issue, and we proceed on that basis.
III
The INA establishes numerous grounds on which an
alien abroad may be inadmissible to the United States and
ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1)
(health-related grounds), (a)(2) (criminal history), (a)(3)(B)
(terrorist activities), (a)(3)(C) (foreign policy grounds).
Congress has also delegated to the President authority to
suspend or restrict the entry of aliens in certain circum-
stances. The principal source of that authority, §1182(f),
enables 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.”1
——————
1 The President also invoked his power under 8 U. S. C. §1185(a)(1),
which grants the President authority to adopt “reasonable rules,
regulations, and orders” governing entry or removal of aliens, “subject
to such limitations and exceptions as [he] may prescribe.” Because this
provision “substantially overlap[s]” with §1182(f ), we agree with the
Government that we “need not resolve . . . the precise relationship
between the two statutes” in evaluating the validity of the Proclama-
10 TRUMP v. HAWAII
Opinion of the Court
Plaintiffs argue that the Proclamation is not a valid
exercise of the President’s authority under the INA. In
their view, §1182(f ) confers only a residual power to tem-
porarily halt the entry of a discrete group of aliens en-
gaged in harmful conduct. They also assert that the Proc-
lamation violates another provision of the INA—8 U. S. C.
§1152(a)(1)(A)—because it discriminates on the basis of
nationality in the issuance of immigrant visas.
By its plain language, §1182(f ) grants the President
broad discretion to suspend the entry of aliens into the
United States. The President lawfully exercised that
discretion based on his findings—following a worldwide,
multi-agency review—that entry of the covered aliens
would be detrimental to the national interest. And plain-
tiffs’ attempts to identify a conflict with other provisions
in the INA, and their appeal to the statute’s purposes and
legislative history, fail to overcome the clear statutory
language.
A
The text of §1182(f ) states:
“Whenever the President finds that the entry of any
aliens or of any class of aliens into the United States
would be detrimental to the interests of the United
States, he may by proclamation, and for such period
as he shall deem necessary, suspend the entry of all
aliens or any class of aliens as immigrants or nonim-
migrants, or impose on the entry of aliens any re-
strictions he may deem to be appropriate.”
By its terms, §1182(f ) exudes deference to the President
in every clause. It entrusts to the President the decisions
whether and when to suspend entry (“[w]henever [he]
finds that the entry” of aliens “would be detrimental” to
——————
tion. Brief for Petitioners 32–33.
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
the national interest); whose entry to suspend (“all aliens
or any class of aliens”); for how long (“for such period as he
shall deem necessary”); and on what conditions (“any
restrictions he may deem to be appropriate”). It is there-
fore unsurprising that we have previously observed that
§1182(f ) vests the President with “ample power” to impose
entry restrictions in addition to those elsewhere enumer-
ated in the INA. Sale, 509 U. S., at 187 (finding it “per-
fectly clear” that the President could “establish a naval
blockade” to prevent illegal migrants from entering the
United States); see also Abourezk v. Reagan, 785 F. 2d
1043, 1049, n. 2 (CADC 1986) (describing the “sweeping
proclamation power” in §1182(f ) as enabling the President
to supplement the other grounds of inadmissibility in the
INA).
The Proclamation falls well within this comprehensive
delegation. The sole prerequisite set forth in §1182(f ) is
that the President “find[ ]” that the entry of the covered
aliens “would be detrimental to the interests of the United
States.” The President has undoubtedly fulfilled that
requirement here. He first ordered DHS and other agen-
cies to conduct a comprehensive evaluation of every single
country’s compliance with the information and risk as-
sessment baseline. The President then issued a Proclama-
tion setting forth extensive findings describing how defi-
ciencies 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.” Proclamation §1(h)(i). 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 Proclamation therefore “craft[ed] . . .
country-specific restrictions that would be most likely to
12 TRUMP v. HAWAII
Opinion of the Court
encourage cooperation given each country’s distinct cir-
cumstances,” while securing the Nation “until such time
as improvements occur.” Ibid.2
Plaintiffs believe that these findings are insufficient.
They argue, as an initial matter, that the Proclamation
fails to provide a persuasive rationale for why nationality
alone renders the covered foreign nationals a security risk.
And they further discount the President’s stated concern
about deficient vetting because the Proclamation allows
many aliens from the designated countries to enter on
nonimmigrant visas.
Such arguments are grounded on the premise that
§1182(f ) not only requires the President to make a finding
that entry “would be detrimental to the interests of the
United States,” but also to explain that finding with suffi-
cient detail to enable judicial review. That premise is
questionable. See Webster v. Doe, 486 U. S. 592, 600
(1988) (concluding that a statute authorizing the CIA
Director to terminate an employee when the Director
“shall deem such termination necessary or advisable in
the interests of the United States” forecloses “any mean-
ingful judicial standard of review”). But even assuming
that some form of review is appropriate, plaintiffs’ attacks
on the sufficiency of the President’s findings cannot be
sustained. The 12-page Proclamation—which thoroughly
describes the process, agency evaluations, and recommen-
dations underlying the President’s chosen restrictions—is
more detailed than any prior order a President has issued
under §1182(f ). Contrast Presidential Proclamation No.
6958, 3 CFR 133 (1996) (President Clinton) (explaining in
one sentence why suspending entry of members of the
——————
2 The Proclamation states that it does not disclose every ground for
the country-specific restrictions because “[d]escribing all of those
reasons publicly . . . would cause serious damage to the national security
of the United States, and many such descriptions are classified.” §1(j).
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
Sudanese government and armed forces “is in the foreign
policy interests of the United States”); Presidential Proc-
lamation No. 4865, 3 CFR 50–51 (1981) (President
Reagan) (explaining in five sentences why measures to
curtail “the continuing illegal migration by sea of large
numbers of undocumented aliens into the southeastern
United States” are “necessary”).
Moreover, plaintiffs’ request for a searching inquiry into
the persuasiveness of the President’s justifications is
inconsistent with the broad statutory text and the defer-
ence traditionally accorded the President in this sphere.
“Whether the President’s chosen method” of addressing
perceived risks is justified from a policy perspective is
“irrelevant to the scope of his [§1182(f )] authority.” Sale,
509 U. S., at 187–188. And when the President adopts “a
preventive measure . . . in the context of international
affairs and national security,” he is “not required to con-
clusively link all of the pieces in the puzzle before [courts]
grant weight to [his] empirical conclusions.” Holder v.
Humanitarian Law Project, 561 U. S. 1, 35 (2010).
The Proclamation also comports with the remaining
textual limits in §1182(f ). We agree with plaintiffs that
the word “suspend” often connotes a “defer[ral] till later,”
Webster’s Third New International Dictionary 2303
(1966). But that does not mean that the President is
required to prescribe in advance a fixed end date for the
entry restrictions. Section 1182(f ) authorizes the Presi-
dent to suspend entry “for such period as he shall deem
necessary.” It follows that when a President suspends
entry in response to a diplomatic dispute or policy concern,
he may link the duration of those restrictions, implicitly or
explicitly, to the resolution of the triggering condition.
See, e.g., Presidential Proclamation No. 5829, 3 CFR 88
(1988) (President Reagan) (suspending the entry of certain
Panamanian nationals “until such time as . . . democracy
has been restored in Panama”); Presidential Proclamation
14 TRUMP v. HAWAII
Opinion of the Court
No. 8693, 3 CFR 86–87 (2011) (President Obama) (sus-
pending the entry of individuals subject to a travel re-
striction under United Nations Security Council resolu-
tions “until such time as the Secretary of State determines
that [the suspension] is no longer necessary”). In fact, not
one of the 43 suspension orders issued prior to this litiga-
tion has specified a precise end date.
Like its predecessors, the Proclamation makes clear that
its “conditional restrictions” will remain in force only so
long as necessary to “address” the identified “inadequacies
and risks” within the covered nations. Proclamation
Preamble, and §1(h); see ibid. (explaining that the aim is
to “relax[ ] or remove[ ]” the entry restrictions “as soon as
possible”). To that end, the Proclamation establishes an
ongoing process to engage covered nations and assess
every 180 days whether the entry restrictions should be
modified or terminated. §§4(a), (b). Indeed, after the
initial review period, the President determined that Chad
had made sufficient improvements to its identity-
management protocols, and he accordingly lifted the entry
suspension on its nationals. See Proclamation No. 9723,
83 Fed. Reg. 15937.
Finally, the Proclamation properly identifies a “class of
aliens”—nationals of select countries—whose entry is
suspended. Plaintiffs argue that “class” must refer to a
well-defined group of individuals who share a common
“characteristic” apart from nationality. Brief for Respond-
ents 42. But the text of §1182(f ), of course, does not say
that, and the word “class” comfortably encompasses a
group of people linked by nationality. Plaintiffs also con-
tend that the class cannot be “overbroad.” Brief for Re-
spondents 42. But that simply amounts to an unspoken
tailoring requirement found nowhere in Congress’s grant
of authority to suspend entry of not only “any class of
aliens” but “all aliens.”
In short, the language of §1182(f) is clear, and the Proc-
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
lamation does not exceed any textual limit on the Presi-
dent’s authority.
B
Confronted with this “facially broad grant of power,” 878
F. 3d, at 688, plaintiffs focus their attention on statutory
structure and legislative purpose. They seek support in,
first, the immigration scheme reflected in the INA as a
whole, and, second, the legislative history of §1182(f) and
historical practice. Neither argument justifies departing
from the clear text of the statute.
1
Plaintiffs’ structural argument starts with the premise
that §1182(f ) does not give the President authority to
countermand Congress’s considered policy judgments.
The President, they say, may supplement the INA, but he
cannot supplant it. And in their view, the Proclamation
falls in the latter category because Congress has already
specified a two-part solution to the problem of aliens
seeking entry from countries that do not share sufficient
information with the United States. First, Congress de-
signed an individualized vetting system that places the
burden on the alien to prove his admissibility. See §1361.
Second, instead of banning the entry of nationals from
particular countries, Congress sought to encourage infor-
mation sharing through a Visa Waiver Program offering
fast-track admission for countries that cooperate with the
United States. See §1187.
We may assume that §1182(f ) does not allow the Presi-
dent to expressly override particular provisions of the
INA. But plaintiffs have not identified any conflict be-
tween the statute and the Proclamation that would implic-
itly bar the President from addressing deficiencies in the
Nation’s vetting system.
To the contrary, the Proclamation supports Congress’s
16 TRUMP v. HAWAII
Opinion of the Court
individualized approach for determining admissibility.
The INA sets forth various inadmissibility grounds based
on connections to terrorism and criminal history, but those
provisions can only work when the consular officer has
sufficient (and sufficiently reliable) information to make
that determination. The Proclamation promotes the effec-
tiveness of the vetting process by helping to ensure the
availability of such information.
Plaintiffs suggest that the entry restrictions are unnec-
essary because consular officers can simply deny visas in
individual cases when an alien fails to carry his burden of
proving admissibility—for example, by failing to produce
certified records regarding his criminal history. Brief for
Respondents 48. But that misses the point: A critical
finding of the Proclamation is that the failure of certain
countries to provide reliable information prevents the
Government from accurately determining whether an
alien is inadmissible or poses a threat. Proclamation
§1(h). Unless consular officers are expected to apply
categorical rules and deny entry from those countries
across the board, fraudulent or unreliable documentation
may thwart their review in individual cases. And at any
rate, the INA certainly does not require that systemic
problems such as the lack of reliable information be ad-
dressed only in a progression of case-by-case admissibility
determinations. One of the key objectives of the Procla-
mation is to encourage foreign governments to improve
their practices, thus facilitating the Government’s vetting
process overall. Ibid.
Nor is there a conflict between the Proclamation and the
Visa Waiver Program. The Program allows travel without
a visa for short-term visitors from 38 countries that have
entered into a “rigorous security partnership” with the
United States. DHS, U. S. Visa Waiver Program (Apr. 6,
2016), http://www.dhs.gov/visa-waiver-program (as last
visited June 25, 2018). Eligibility for that partnership
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
involves “broad and consequential assessments of [the
country’s] foreign security standards and operations.”
Ibid. A foreign government must (among other things)
undergo a comprehensive evaluation of its “counterterror-
ism, law enforcement, immigration enforcement, passport
security, and border management capabilities,” often
including “operational site inspections of airports, sea-
ports, land borders, and passport production and issuance
facilities.” Ibid.
Congress’s decision to authorize a benefit for “many of
America’s closest allies,” ibid., did not implicitly foreclose
the Executive from imposing tighter restrictions on
nationals of certain high-risk countries. The Visa Waiver
Program creates a special exemption for citizens of coun-
tries that maintain exemplary security standards and
offer “reciprocal [travel] privileges” to United States citi-
zens. 8 U. S. C. §1187(a)(2)(A). But in establishing a
select partnership covering less than 20% of the countries
in the world, Congress did not address what requirements
should govern the entry of nationals from the vast majority
of countries that fall short of that gold standard—
particularly those nations presenting heightened terror-
ism concerns. Nor did Congress attempt to determine—as
the multi-agency review process did—whether those high-
risk countries provide a minimum baseline of information
to adequately vet their nationals. Once again, this is not a
situation where “Congress has stepped into the space and
solved the exact problem.” Tr. of Oral Arg. 53.
Although plaintiffs claim that their reading preserves
for the President a flexible power to “supplement” the
INA, their understanding of the President’s authority is
remarkably cramped: He may suspend entry by classes of
aliens “similar in nature” to the existing categories of
inadmissibility—but not too similar—or only in response
to “some exigent circumstance” that Congress did not
already touch on in the INA. Brief for Respondents 31, 36,
18 TRUMP v. HAWAII
Opinion of the Court
50; see also Tr. of Oral Arg. 57 (“Presidents have wide
berth in this area . . . if there’s any sort of emergency.”).
In any event, no Congress that wanted to confer on the
President only a residual authority to address emergency
situations would ever use language of the sort in §1182(f ).
Fairly read, the provision vests authority in the President
to impose additional limitations on entry beyond the
grounds for exclusion set forth in the INA—including in
response to circumstances that might affect the vetting
system or other “interests of the United States.”
Because plaintiffs do not point to any contradiction with
another provision of the INA, the President has not
exceeded his authority under §1182(f ).
2
Plaintiffs seek to locate additional limitations on the
scope of §1182(f ) in the statutory background and legisla-
tive history. Given the clarity of the text, we need not
consider such extra-textual evidence. See State Farm Fire
& Casualty Co. v. United States ex rel. Rigsby, 580 U. S.
___, ___ (2016) (slip op., at 9). At any rate, plaintiffs’
evidence supports the plain meaning of the provision.
Drawing on legislative debates over §1182(f ), plaintiffs
suggest that the President’s suspension power should be
limited to exigencies where it would be difficult for Con-
gress to react promptly. Precursor provisions enacted
during the First and Second World Wars confined the
President’s exclusion authority to times of “war” and
“national emergency.” See Act of May 22, 1918, §1(a), 40
Stat. 559; Act of June 21, 1941, ch. 210, §1, 55 Stat. 252.
When Congress enacted §1182(f ) in 1952, plaintiffs note, it
borrowed “nearly verbatim” from those predecessor stat-
utes, and one of the bill’s sponsors affirmed that the provi-
sion would apply only during a time of crisis. According to
plaintiffs, it therefore follows that Congress sought to
delegate only a similarly tailored suspension power in
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
§1182(f ). Brief for Respondents 39–40.
If anything, the drafting history suggests the opposite.
In borrowing “nearly verbatim” from the pre-existing
statute, Congress made one critical alteration—it removed
the national emergency standard that plaintiffs now seek
to reintroduce in another form. Weighing Congress’s
conscious departure from its wartime statutes against an
isolated floor statement, the departure is far more proba-
tive. See NLRB v. SW General, Inc., 580 U. S. ___, ___
(2017) (slip op., at 16) (“[F]loor statements by individual
legislators rank among the least illuminating forms of
legislative history.”). When Congress wishes to condition
an exercise of executive authority on the President’s find-
ing of an exigency or crisis, it knows how to say just that.
See, e.g., 16 U. S. C. §824o–1(b); 42 U. S. C. §5192; 50
U. S. C. §§1701, 1702. Here, Congress instead chose to
condition the President’s exercise of the suspension
authority on a different finding: that the entry of an alien
or class of aliens would be “detrimental to the interests of
the United States.”
Plaintiffs also strive to infer limitations from executive
practice. By their count, every previous suspension order
under §1182(f ) can be slotted into one of two categories.
The vast majority targeted discrete groups of foreign
nationals engaging in conduct “deemed harmful by the
immigration laws.” And the remaining entry restrictions
that focused on entire nationalities—namely, President
Carter’s response to the Iran hostage crisis and President
Reagan’s suspension of immigration from Cuba—were, in
their view, designed as a response to diplomatic emergen-
cies “that the immigration laws do not address.” Brief for
Respondents 40–41.
Even if we were willing to confine expansive language in
light of its past applications, the historical evidence is
more equivocal than plaintiffs acknowledge. Presidents
have repeatedly suspended entry not because the covered
20 TRUMP v. HAWAII
Opinion of the Court
nationals themselves engaged in harmful acts but instead
to retaliate for conduct by their governments that conflicted
with U. S. foreign policy interests. See, e.g., Exec. Order
No. 13662, 3 CFR 233 (2014) (President Obama) (suspend-
ing entry of Russian nationals working in the financial
services, energy, mining, engineering, or defense sectors,
in light of the Russian Federation’s “annexation of Crimea
and its use of force in Ukraine”); Presidential Proclama-
tion No. 6958, 3 CFR 133 (1997) (President Clinton) (sus-
pending entry of Sudanese governmental and military
personnel, citing “foreign policy interests of the United
States” based on Sudan’s refusal to comply with United
Nations resolution). And while some of these reprisals
were directed at subsets of aliens from the countries at
issue, others broadly suspended entry on the basis of
nationality due to ongoing diplomatic disputes. For exam-
ple, President Reagan invoked §1182(f ) to suspend entry
“as immigrants” by almost all Cuban nationals, to apply
pressure on the Cuban Government. Presidential Procla-
mation No. 5517, 3 CFR 102 (1986). Plaintiffs try to fit
this latter order within their carve-out for emergency
action, but the proclamation was based in part on Cuba’s
decision to breach an immigration agreement some 15
months earlier.
More significantly, plaintiffs’ argument about historical
practice is a double-edged sword. The more ad hoc their
account of executive action—to fit the history into their
theory—the harder it becomes to see such a refined dele-
gation in a statute that grants the President sweeping
authority to decide whether to suspend entry, whose entry
to suspend, and for how long.
C
Plaintiffs’ final statutory argument is that the Presi-
dent’s entry suspension violates §1152(a)(1)(A), which
provides that “no person shall . . . be discriminated against
Cite as: 585 U. S. ____ (2018) 21
Opinion of the Court
in the issuance of an immigrant visa because of the per-
son’s race, sex, nationality, place of birth, or place of
residence.” They contend that we should interpret the
provision as prohibiting nationality-based discrimination
throughout the entire immigration process, despite the
reference in §1152(a)(1)(A) to the act of visa issuance
alone. Specifically, plaintiffs argue that §1152(a)(1)(A)
applies to the predicate question of a visa applicant’s
eligibility for admission and the subsequent question
whether the holder of a visa may in fact enter the country.
Any other conclusion, they say, would allow the President
to circumvent the protections against discrimination
enshrined in §1152(a)(1)(A).
As an initial matter, this argument challenges only the
validity of the entry restrictions on immigrant travel.
Section 1152(a)(1)(A) is expressly limited to the issuance
of “immigrant visa[s]” while §1182(f ) allows the Presi-
dent to suspend entry of “immigrants or nonimmigrants.”
At a minimum, then, plaintiffs’ reading would not affect
any of the limitations on nonimmigrant travel in the
Proclamation.
In any event, we reject plaintiffs’ interpretation because
it ignores the basic distinction between admissibility
determinations and visa issuance that runs throughout
the INA.3 Section 1182 defines the pool of individuals who
——————
3 The Act is rife with examples distinguishing between the two con-
cepts. See, e.g., 8 U. S. C. §1101(a)(4) (“The term ‘application for
admission’ has reference to the application for admission into the
United States and not to the application for the issuance of an immi-
grant or nonimmigrant visa.”); §1182(a) (“ineligible to receive visas and
ineligible to be admitted”); §1182(a)(3)(D)(iii) (“establishes to the
satisfaction of the consular officer when applying for a visa . . . or to the
satisfaction of the Attorney General when applying for admission”);
§1182(h)(1)(A)(i) (“alien’s application for a visa, admission, or adjust-
ment of status”); §1187 (permitting entry without a visa); §1361 (estab-
lishing burden of proof for when a person “makes application for a visa
. . . , or makes application for admission, or otherwise attempts to enter
22 TRUMP v. HAWAII
Opinion of the Court
are admissible to the United States. Its restrictions come
into play at two points in the process of gaining entry (or
admission)4 into the United States. First, any alien who is
inadmissible under §1182 (based on, for example, health
risks, criminal history, or foreign policy consequences) is
screened out as “ineligible to receive a visa.” 8 U. S. C.
§1201(g). Second, even if a consular officer issues a visa,
entry into the United States is not guaranteed. As every
visa application explains, a visa does not entitle an alien
to enter the United States “if, upon arrival,” an immigra-
tion officer determines that the applicant is “inadmissible
under this chapter, or any other provision of law”—
including §1182(f ). §1201(h).
Sections 1182(f ) and 1152(a)(1)(A) thus operate in dif-
ferent spheres: Section 1182 defines the universe of aliens
who are admissible into the United States (and therefore
eligible to receive a visa). Once §1182 sets the boundaries
of admissibility into the United States, §1152(a)(1)(A)
prohibits discrimination in the allocation of immigrant
visas based on nationality and other traits. The distinc-
tion between admissibility—to which §1152(a)(1)(A) does
not apply—and visa issuance—to which it does—is appar-
ent from the text of the provision, which specifies only that
its protections apply to the “issuance” of “immigrant vi-
sa[s],” without mentioning admissibility or entry. Had
Congress instead intended in §1152(a)(1)(A) to constrain
the President’s power to determine who may enter the
country, it could easily have chosen language directed to
that end. See, e.g., §§1182(a)(3)(C)(ii), (iii) (providing that
certain aliens “shall not be excludable or subject to re-
strictions or conditions on entry . . . because of the alien’s
——————
the United States”).
4 The concepts of entry and admission—but not issuance of a visa—
are used interchangeably in the INA. See §1101(a)(13)(A) (defining
“admission” as the “lawful entry of the alien into the United States”).
Cite as: 585 U. S. ____ (2018) 23
Opinion of the Court
past, current, or expected beliefs, statements, or associa-
tions” (emphasis added)). “The fact that [Congress] did
not adopt [a] readily available and apparent alternative
strongly supports” the conclusion that §1152(a)(1)(A) does
not limit the President’s delegated authority under
§1182(f ). Knight v. Commissioner, 552 U. S. 181, 188
(2008).
Common sense and historical practice confirm as much.
Section 1152(a)(1)(A) has never been treated as a con-
straint on the criteria for admissibility in §1182. Presi-
dents have repeatedly exercised their authority to suspend
entry on the basis of nationality. As noted, President
Reagan relied on §1182(f ) to suspend entry “as immi-
grants by all Cuban nationals,” subject to exceptions.
Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Like-
wise, President Carter invoked §1185(a)(1) to deny and
revoke visas to all Iranian nationals. See Exec. Order No.
12172, 3 CFR 461 (1979), as amended by Exec. Order No.
12206, 3 CFR 249 (1980); Public Papers of the Presidents,
Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7,
1980, pp. 611–612 (1980); see also n. 1, supra.
On plaintiffs’ reading, those orders were beyond the
President’s authority. The entry restrictions in the Proc-
lamation on North Korea (which plaintiffs do not chal-
lenge in this litigation) would also be unlawful. Nor would
the President be permitted to suspend entry from particu-
lar foreign states in response to an epidemic confined to a
single region, or a verified terrorist threat involving na-
tionals of a specific foreign nation, or even if the United
States were on the brink of war.
In a reprise of their §1182(f ) argument, plaintiffs at-
tempt to soften their position by falling back on an implicit
exception for Presidential actions that are “closely drawn”
to address “specific fast-breaking exigencies.” Brief for
Respondents 60–61. Yet the absence of any textual basis
for such an exception more likely indicates that Congress
24 TRUMP v. HAWAII
Opinion of the Court
did not intend for §1152(a)(1)(A) to limit the President’s
flexible authority to suspend entry based on foreign policy
interests. In addition, plaintiffs’ proposed exigency test
would require courts, rather than the President, to deter-
mine whether a foreign government’s conduct rises to the
level that would trigger a supposed implicit exception
to a federal statute. See Reno v. American-Arab Anti-
Discrimination Comm., 525 U. S. 471, 491 (1999) (explain-
ing that even if the Executive “disclose[d] its . . . reasons
for deeming nationals of a particular country a special
threat,” courts would be “unable to assess their adequacy”).
The text of §1152(a)(1)(A) offers no standards that would
enable courts to assess, for example, whether the situation
in North Korea justifies entry restrictions while the terror-
ist threat in Yemen does not.
* * *
The Proclamation is squarely within the scope of Presi-
dential authority under the INA. Indeed, neither dissent
even attempts any serious argument to the contrary,
despite the fact that plaintiffs’ primary contention below
and in their briefing before this Court was that the Proc-
lamation violated the statute.
IV
A
We now turn to plaintiffs’ claim that the Proclamation
was issued for the unconstitutional purpose of excluding
Muslims. Because we have an obligation to assure our-
selves of jurisdiction under Article III, we begin by ad-
dressing the question whether plaintiffs have standing to
bring their constitutional challenge.
Federal courts have authority under the Constitution to
decide legal questions only in the course of resolving
“Cases” or “Controversies.” Art. III, §2. One of the essen-
tial elements of a legal case or controversy is that the
Cite as: 585 U. S. ____ (2018) 25
Opinion of the Court
plaintiff have standing to sue. Standing requires more
than just a “keen interest in the issue.” Hollingsworth v.
Perry, 570 U. S. 693, 700 (2013). It requires allegations—
and, eventually, proof—that the plaintiff “personal[ly]”
suffered a concrete and particularized injury in connection
with the conduct about which he complains. Spokeo, Inc.
v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 7). In a
case arising from an alleged violation of the Establishment
Clause, a plaintiff must show, as in other cases, that he is
“directly affected by the laws and practices against which
[his] complaints are directed.” School Dist. of Abington
Township v. Schempp, 374 U. S. 203, 224, n. 9 (1963).
That is an issue here because the entry restrictions apply
not to plaintiffs themselves but to others seeking to enter
the United States.
Plaintiffs first argue that they have standing on the
ground that the Proclamation “establishes a disfavored
faith” and violates “their own right to be free from federal
[religious] establishments.” Brief for Respondents 27–28
(emphasis deleted). They describe such injury as “spirit-
ual and dignitary.” Id., at 29.
We need not decide whether the claimed dignitary in-
terest establishes an adequate ground for standing. The
three individual plaintiffs assert another, more concrete
injury: the alleged real-world effect that the Proclamation
has had in keeping them separated from certain relatives
who seek to enter the country. See ibid.; Town of Chester
v. Laroe Estates, Inc., 581 U. S. ___, ___–___ (2017) (slip
op., at 5–6) (“At least one plaintiff must have standing to
seek each form of relief requested in the complaint.”). We
agree that a person’s interest in being united with his
relatives is sufficiently concrete and particularized to form
the basis of an Article III injury in fact. This Court has
previously considered the merits of claims asserted by
United States citizens regarding violations of their per-
sonal rights allegedly caused by the Government’s exclu-
26 TRUMP v. HAWAII
Opinion of the Court
sion of particular foreign nationals. See Kerry v. Din, 576
U. S. ___, ___ (2015) (plurality opinion) (slip op., at 15); id.,
at ___ (KENNEDY, J., concurring in judgment) (slip op.,
at 1); Kleindienst v. Mandel, 408 U. S. 753, 762 (1972).
Likewise, one of our prior stay orders in this litigation
recognized that an American individual who has “a bona
fide relationship with a particular person seeking to enter
the country . . . can legitimately claim concrete hardship if
that person is excluded.” Trump v. IRAP, 582 U. S., at ___
(slip op., at 13).
The Government responds that plaintiffs’ Establishment
Clause claims are not justiciable because the Clause does
not give them a legally protected interest in the admission
of particular foreign nationals. But that argument—which
depends upon the scope of plaintiffs’ Establishment Clause
rights—concerns the merits rather than the justiciability
of plaintiffs’ claims. We therefore conclude that the indi-
vidual plaintiffs have Article III standing to challenge the
exclusion of their relatives under the Establishment
Clause.
B
The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.” Our cases recog-
nize that “[t]he clearest command of the Establishment
Clause is that one religious denomination cannot be offi-
cially preferred over another.” Larson v. Valente, 456
U. S. 228, 244 (1982). Plaintiffs believe that the Procla-
mation violates this prohibition by singling out Muslims
for disfavored treatment. The entry suspension, they
contend, operates as a “religious gerrymander,” in part
because most of the countries covered by the Proclamation
have Muslim-majority populations. And in their view,
deviations from the information-sharing baseline criteria
suggest that the results of the multi-agency review were
Cite as: 585 U. S. ____ (2018) 27
Opinion of the Court
“foreordained.” Relying on Establishment Clause prece-
dents concerning laws and policies applied domestically,
plaintiffs allege that the primary purpose of the Proclama-
tion was religious animus and that the President’s stated
concerns about vetting protocols and national security
were but pretexts for discriminating against Muslims.
Brief for Respondents 69–73.
At the heart of plaintiffs’ case is a series of statements
by the President and his advisers casting doubt on the
official objective of the Proclamation. For example, while
a candidate on the campaign trail, the President published
a “Statement on Preventing Muslim Immigration” that
called for a “total and complete shutdown of Muslims
entering the United States until our country’s representa-
tives can figure out what is going on.” App. 158. That
statement remained on his campaign website until May
2017. Id., at 130–131. Then-candidate Trump also stated
that “Islam hates us” and asserted that the United States
was “having problems with Muslims coming into the
country.” Id., at 120–121, 159. Shortly after being elected,
when asked whether violence in Europe had affected
his plans to “ban Muslim immigration,” the President
replied, “You know my plans. All along, I’ve been proven
to be right.” Id., at 123.
One week after his inauguration, the President issued
EO–1. In a television interview, one of the President’s
campaign advisers explained that when the President
“first announced it, he said, ‘Muslim ban.’ He called me
up. He said, ‘Put a commission together. Show me the
right way to do it legally.’ ” Id., at 125. The adviser said
he assembled a group of Members of Congress and lawyers
that “focused on, instead of religion, danger. . . . [The
order] is based on places where there [is] substantial
evidence that people are sending terrorists into our coun-
try.” Id., at 229.
Plaintiffs also note that after issuing EO–2 to replace
28 TRUMP v. HAWAII
Opinion of the Court
EO–1, the President expressed regret that his prior order
had been “watered down” and called for a “much tougher
version” of his “Travel Ban.” Shortly before the release of
the Proclamation, he stated that the “travel ban . . . should
be far larger, tougher, and more specific,” but “stupidly
that would not be politically correct.” Id., at 132–133.
More recently, on November 29, 2017, the President re-
tweeted links to three anti-Muslim propaganda videos. In
response to questions about those videos, the President’s
deputy press secretary denied that the President thinks
Muslims are a threat to the United States, explaining that
“the President has been talking about these security
issues for years now, from the campaign trail to the White
House” and “has addressed these issues with the travel
order that he issued earlier this year and the companion
proclamation.” IRAP v. Trump, 883 F. 3d 233, 267 (CA4
2018).
The President of the United States possesses an ex-
traordinary power to speak to his fellow citizens and on
their behalf. Our Presidents have frequently used that
power to espouse the principles of religious freedom and
tolerance on which this Nation was founded. In 1790
George Washington reassured the Hebrew Congregation of
Newport, Rhode Island that “happily the Government of
the United States . . . gives to bigotry no sanction, to per-
secution no assistance [and] requires only that they who
live under its protection should demean themselves as
good citizens.” 6 Papers of George Washington 285 (D.
Twohig ed. 1996). President Eisenhower, at the opening of
the Islamic Center of Washington, similarly pledged to a
Muslim audience that “America would fight with her
whole strength for your right to have here your own
church,” declaring that “[t]his concept is indeed a part of
America.” Public Papers of the Presidents, Dwight D.
Eisenhower, June 28, 1957, p. 509 (1957). And just days
after the attacks of September 11, 2001, President George
Cite as: 585 U. S. ____ (2018) 29
Opinion of the Court
W. Bush returned to the same Islamic Center to implore
his fellow Americans—Muslims and non-Muslims alike—
to remember during their time of grief that “[t]he face of
terror is not the true faith of Islam,” and that America is
“a great country because we share the same values of
respect and dignity and human worth.” Public Papers of
the Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p.
1121 (2001). Yet it cannot be denied that the Federal
Government and the Presidents who have carried its laws
into effect have—from the Nation’s earliest days—
performed unevenly in living up to those inspiring words.
Plaintiffs argue that this President’s words strike at
fundamental standards of respect and tolerance, in viola-
tion of our constitutional tradition. But the issue before
us is not whether to denounce the statements. It is in-
stead the significance of those statements in reviewing a
Presidential directive, neutral on its face, addressing a
matter within the core of executive responsibility. In
doing so, we must consider not only the statements of a
particular President, but also the authority of the Presi-
dency itself.
The case before us differs in numerous respects from the
conventional Establishment Clause claim. Unlike the
typical suit involving religious displays or school prayer,
plaintiffs seek to invalidate a national security directive
regulating the entry of aliens abroad. Their claim accord-
ingly raises a number of delicate issues regarding the
scope of the constitutional right and the manner of proof.
The Proclamation, moreover, is facially neutral toward
religion. Plaintiffs therefore ask the Court to probe the
sincerity of the stated justifications for the policy by refer-
ence to extrinsic statements—many of which were made
before the President took the oath of office. These various
aspects of plaintiffs’ challenge inform our standard of
review.
30 TRUMP v. HAWAII
Opinion of the Court
C
For more than a century, this Court has recognized that
the admission and exclusion of foreign nationals is a “fun-
damental sovereign attribute exercised by the Govern-
ment’s political departments largely immune from judicial
control.” Fiallo v. Bell, 430 U. S. 787, 792 (1977); see
Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952)
(“[A]ny policy toward aliens is vitally and intricately in-
terwoven with contemporaneous policies in regard to the
conduct of foreign relations [and] the war power.”). Be-
cause decisions in these matters may implicate “relations
with foreign powers,” or involve “classifications defined in
the light of changing political and economic circumstances,”
such judgments “are frequently of a character more ap-
propriate to either the Legislature or the Executive.”
Mathews v. Diaz, 426 U. S. 67, 81 (1976).
Nonetheless, although foreign nationals seeking admis-
sion have no constitutional right to entry, this Court has
engaged in a circumscribed judicial inquiry when the
denial of a visa allegedly burdens the constitutional rights
of a U. S. citizen. In Kleindienst v. Mandel, the Attorney
General denied admission to a Belgian journalist and self-
described “revolutionary Marxist,” Ernest Mandel, who
had been invited to speak at a conference at Stanford
University. 408 U. S., at 756–757. The professors who
wished to hear Mandel speak challenged that decision
under the First Amendment, and we acknowledged that
their constitutional “right to receive information” was
implicated. Id., at 764–765. But we limited our review to
whether the Executive gave a “facially legitimate and bona
fide” reason for its action. Id., at 769. Given the authority
of the political branches over admission, we held that
“when the Executive exercises this [delegated] power
negatively on the basis of a facially legitimate and bona
fide reason, the courts will neither look behind the exer-
cise of that discretion, nor test it by balancing its justifica-
Cite as: 585 U. S. ____ (2018) 31
Opinion of the Court
tion” against the asserted constitutional interests of U. S.
citizens. Id., at 770.
The principal dissent suggests that Mandel has no
bearing on this case, post, at 14, and n. 5 (opinion of
SOTOMAYOR, J.) (hereinafter the dissent), but our opinions
have reaffirmed and applied its deferential standard of
review across different contexts and constitutional claims.
In Din, JUSTICE KENNEDY reiterated that “respect for the
political branches’ broad power over the creation and
administration of the immigration system” meant that the
Government need provide only a statutory citation to
explain a visa denial. 576 U. S., at ___ (opinion concurring
in judgment) (slip op., at 6). Likewise in Fiallo, we applied
Mandel to a “broad congressional policy” giving immigra-
tion preferences to mothers of illegitimate children. 430
U. S., at 795. Even though the statute created a “categori-
cal” entry classification that discriminated on the basis of
sex and legitimacy, post, at 14, n. 5, the Court concluded
that “it is not the judicial role in cases of this sort to probe
and test the justifications” of immigration policies. 430
U. S., at 799 (citing Mandel, 408 U. S., at 770). Lower
courts have similarly applied Mandel to broad executive
action. See Rajah v. Mukasey, 544 F. 3d 427, 433, 438–
439 (CA2 2008) (upholding National Security Entry-Exit
Registration System instituted after September 11, 2001).
Mandel’s narrow standard of review “has particular
force” in admission and immigration cases that overlap
with “the area of national security.” Din, 576 U. S., at ___
(KENNEDY, J., concurring in judgment) (slip op., at 3). For
one, “[j]udicial inquiry into the national-security realm
raises concerns for the separation of powers” by intruding
on the President’s constitutional responsibilities in the
area of foreign affairs. Ziglar v. Abbasi, 582 U. S. ___, ___
(2017) (slip op., at 19) (internal quotation marks omitted).
For another, “when it comes to collecting evidence and
drawing inferences” on questions of national security, “the
32 TRUMP v. HAWAII
Opinion of the Court
lack of competence on the part of the courts is marked.”
Humanitarian Law Project, 561 U. S., at 34.
The upshot of our cases in this context is clear: “Any
rule of constitutional law that would inhibit the flexibility”
of the President “to respond to changing world conditions
should be adopted only with the greatest caution,” and our
inquiry into matters of entry and national security is
highly constrained. Mathews, 426 U. S., at 81–82. We
need not define the precise contours of that inquiry in this
case. A conventional application of Mandel, asking only
whether the policy is facially legitimate and bona fide,
would put an end to our review. But the Government has
suggested that it may be appropriate here for the inquiry
to extend beyond the facial neutrality of the order. See Tr.
of Oral Arg. 16–17, 25–27 (describing Mandel as “the
starting point” of the analysis). For our purposes today,
we assume that we may look behind the face of the Proc-
lamation to the extent of applying rational basis review.
That standard of review considers whether the entry
policy is plausibly related to the Government’s stated
objective to protect the country and improve vetting pro-
cesses. See Railroad Retirement Bd. v. Fritz, 449 U. S.
166, 179 (1980). As a result, we may consider plaintiffs’
extrinsic evidence, but will uphold the policy so long as it
can reasonably be understood to result from a justification
independent of unconstitutional grounds.5
——————
5 The dissent finds “perplexing” the application of rational basis re-
view in this context. Post, at 15. But what is far more problematic is
the dissent’s assumption that courts should review immigration poli-
cies, diplomatic sanctions, and military actions under the de novo
“reasonable observer” inquiry applicable to cases involving holiday
displays and graduation ceremonies. The dissent criticizes application
of a more constrained standard of review as “throw[ing] the Establish-
ment Clause out the window.” Post, at 16, n. 6. But as the numerous
precedents cited in this section make clear, such a circumscribed
inquiry applies to any constitutional claim concerning the entry of
foreign nationals. See Part IV–C, supra. The dissent can cite no
Cite as: 585 U. S. ____ (2018) 33
Opinion of the Court
D
Given the standard of review, it should come as no
surprise that the Court hardly ever strikes down a policy
as illegitimate under rational basis scrutiny. On the few
occasions where we have done so, a common thread has
been that the laws at issue lack any purpose other than a
“bare . . . desire to harm a politically unpopular group.”
Department of Agriculture v. Moreno, 413 U. S. 528, 534
(1973). In one case, we invalidated a local zoning ordi-
nance that required a special permit for group homes for
the intellectually disabled, but not for other facilities such
as fraternity houses or hospitals. We did so on the ground
that the city’s stated concerns about (among other things)
“legal responsibility” and “crowded conditions” rested on
“an irrational prejudice” against the intellectually dis-
abled. Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432, 448–450 (1985) (internal quotation marks omitted).
And in another case, this Court overturned a state consti-
tutional amendment that denied gays and lesbians access
to the protection of antidiscrimination laws. The amend-
ment, we held, was “divorced from any factual context
from which we could discern a relationship to legitimate
state interests,” and “its sheer breadth [was] so discontin-
uous with the reasons offered for it” that the initiative
seemed “inexplicable by anything but animus.” Romer v.
Evans, 517 U. S. 620, 632, 635 (1996).
The Proclamation does not fit this pattern. It cannot be
said that it is impossible to “discern a relationship to
legitimate state interests” or that the policy is “inexplica-
ble by anything but animus.” Indeed, the dissent can only
attempt to argue otherwise by refusing to apply anything
resembling rational basis review. But because there is
——————
authority for its proposition that the more free-ranging inquiry it
proposes is appropriate in the national security and foreign affairs
context.
34 TRUMP v. HAWAII
Opinion of the Court
persuasive evidence that the entry suspension has a legit-
imate grounding in national security concerns, quite apart
from any religious hostility, we must accept that inde-
pendent justification.
The Proclamation is expressly premised on legitimate
purposes: preventing entry of nationals who cannot be
adequately vetted and inducing other nations to improve
their practices. The text says nothing about religion.
Plaintiffs and the dissent nonetheless emphasize that five
of the seven nations currently included in the Proclama-
tion have Muslim-majority populations. Yet that fact
alone does not support an inference of religious hostility,
given that the policy covers just 8% of the world’s Muslim
population and is limited to countries that were previously
designated by Congress or prior administrations as posing
national security risks. See 8 U. S. C. §1187(a)(12)(A)
(identifying Syria and state sponsors of terrorism such as
Iran as “countr[ies] or area[s] of concern” for purposes of
administering the Visa Waiver Program); Dept. of Home-
land Security, DHS Announces Further Travel Re-
strictions for the Visa Waiver Program (Feb. 18, 2016)
(designating Libya, Somalia, and Yemen as additional
countries of concern); see also Rajah, 544 F. 3d, at 433, n.
3 (describing how nonimmigrant aliens from Iran, Libya,
Somalia, Syria, and Yemen were covered by the National
Security Entry-Exit Registration System).
The Proclamation, moreover, reflects the results of a
worldwide review process undertaken by multiple Cabinet
officials and their agencies. Plaintiffs seek to discredit the
findings of the review, pointing to deviations from the
review’s baseline criteria resulting in the inclusion of
Somalia and omission of Iraq. But as the Proclamation
explains, in each case the determinations were justified by
the distinct conditions in each country. Although Somalia
generally satisfies the information-sharing component of
the baseline criteria, it “stands apart . . . in the degree to
Cite as: 585 U. S. ____ (2018) 35
Opinion of the Court
which [it] lacks command and control of its territory.”
Proclamation §2(h)(i). As for Iraq, the Secretary of Home-
land Security determined that entry restrictions were not
warranted in light of the close cooperative relationship
between the U. S. and Iraqi Governments and the coun-
try’s key role in combating terrorism in the region. §1(g).
It is, in any event, difficult to see how exempting one of
the largest predominantly Muslim countries in the region
from coverage under the Proclamation can be cited as
evidence of animus toward Muslims.
The dissent likewise doubts the thoroughness of the
multi-agency review because a recent Freedom of Infor-
mation Act request shows that the final DHS report “was
a mere 17 pages.” Post, at 19. Yet a simple page count
offers little insight into the actual substance of the final
report, much less predecisional materials underlying it.
See 5 U. S. C. §552(b)(5) (exempting deliberative materials
from FOIA disclosure).
More fundamentally, plaintiffs and the dissent chal-
lenge the entry suspension based on their perception of its
effectiveness and wisdom. They suggest that the policy is
overbroad and does little to serve national security inter-
ests. But we cannot substitute our own assessment for the
Executive’s predictive judgments on such matters, all of
which “are delicate, complex, and involve large elements of
prophecy.” Chicago & Southern Air Lines, Inc. v. Water-
man S. S. Corp., 333 U. S. 103, 111 (1948); see also Regan
v. Wald, 468 U. S. 222, 242–243 (1984) (declining invita-
tion to conduct an “independent foreign policy analysis”).
While we of course “do not defer to the Government’s
reading of the First Amendment,” the Executive’s evalua-
tion of the underlying facts is entitled to appropriate
weight, particularly in the context of litigation involving
“sensitive and weighty interests of national security and
foreign affairs.” Humanitarian Law Project, 561 U. S., at36 TRUMP v. HAWAII
Opinion of the Court
33–34.6
Three additional features of the entry policy support the
Government’s claim of a legitimate national security
interest. First, since the President introduced entry re-
strictions in January 2017, three Muslim-majority coun-
tries—Iraq, Sudan, and Chad—have been removed from
the list of covered countries. The Proclamation emphasizes
that its “conditional restrictions” will remain in force only
so long as necessary to “address” the identified “inadequa-
cies and risks,” Proclamation Preamble, and §1(h), and
establishes an ongoing process to engage covered nations
and assess every 180 days whether the entry restrictions
should be terminated, §§4(a), (b). In fact, in announcing
the termination of restrictions on nationals of Chad, the
President also described Libya’s ongoing engagement with
the State Department and the steps Libya is taking “to
improve its practices.” Proclamation No. 9723, 83 Fed.
Reg. 15939.
Second, for those countries that remain subject to entry
restrictions, the Proclamation includes significant excep-
tions for various categories of foreign nationals. The
policy permits nationals from nearly every covered country
to travel to the United States on a variety of nonimmi-
grant visas. See, e.g., §§2(b)–(c), (g), (h) (permitting stu-
dent and exchange visitors from Iran, while restricting
only business and tourist nonimmigrant entry for nation-
als of Libya and Yemen, and imposing no restrictions on
——————
6 The dissent recycles much of plaintiffs’ §1182(f ) argument to assert
that “Congress has already erected a statutory scheme that fulfills” the
President’s stated concern about deficient vetting. Post, at 19–21. But
for the reasons set forth earlier, Congress has not in any sense “stepped
into the space and solved the exact problem.” Tr. of Oral Arg. 53.
Neither the existing inadmissibility grounds nor the narrow Visa
Waiver Program address the failure of certain high-risk countries to
provide a minimum baseline of reliable information. See Part III–B–1,
supra.
Cite as: 585 U. S. ____ (2018) 37
Opinion of the Court
nonimmigrant entry for Somali nationals). These carve-
outs for nonimmigrant visas are substantial: Over the last
three fiscal years—before the Proclamation was in effect—
the majority of visas issued to nationals from the covered
countries were nonimmigrant visas. Brief for Petitioners
57. The Proclamation also exempts permanent resi-
dents and individuals who have been granted asylum.
§§3(b)(i), (vi).
Third, the Proclamation creates a waiver program open
to all covered foreign nationals seeking entry as immi-
grants or nonimmigrants. According to the Proclamation,
consular officers are to consider in each admissibility
determination whether the alien demonstrates that (1)
denying entry would cause undue hardship; (2) entry
would not pose a threat to public safety; and (3) entry
would be in the interest of the United States. §3(c)(i); see
also §3(c)(iv) (listing examples of when a waiver might be
appropriate, such as if the foreign national seeks to reside
with a close family member, obtain urgent medical care, or
pursue significant business obligations). On its face, this
program is similar to the humanitarian exceptions set
forth in President Carter’s order during the Iran hostage
crisis. See Exec. Order No. 12206, 3 CFR 249; Public
Papers of the Presidents, Jimmy Carter, Sanctions
Against Iran, at 611–612 (1980) (outlining exceptions).
The Proclamation also directs DHS and the State Depart-
ment to issue guidance elaborating upon the circumstances
that would justify a waiver.7
——————
7 JUSTICE BREYER focuses on only one aspect of our consideration—the
waiver program and other exemptions in the Proclamation. Citing
selective statistics, anecdotal evidence, and a declaration from unre-
lated litigation, JUSTICE BREYER suggests that not enough individuals are
receiving waivers or exemptions. Post, at 4–8 (dissenting opinion). Yet
even if such an inquiry were appropriate under rational basis review,
the evidence he cites provides “but a piece of the picture,” post, at 6,
and does not affect our analysis.
38 TRUMP v. HAWAII
Opinion of the Court
Finally, the dissent invokes Korematsu v. United States,
323 U. S. 214 (1944). Whatever rhetorical advantage the
dissent may see in doing so, Korematsu has nothing to do
with this case. The forcible relocation of U. S. citizens to
concentration camps, solely and explicitly on the basis of
race, is objectively unlawful and outside the scope of Pres-
idential authority. But it is wholly inapt to liken that
morally repugnant order to a facially neutral policy deny-
ing certain foreign nationals the privilege of admission.
See post, at 26–28. The entry suspension is an act that is
well within executive authority and could have been taken
by any other President—the only question is evaluating
the actions of this particular President in promulgating an
otherwise valid Proclamation.
The dissent’s reference to Korematsu, however, affords
this Court the opportunity to make express what is al-
ready obvious: Korematsu was gravely wrong the day it
was decided, has been overruled in the court of history,
and—to be clear—“has no place in law under the Constitu-
tion.” 323 U. S., at 248 (Jackson, J., dissenting).
* * *
Under these circumstances, the Government has set
forth a sufficient national security justification to survive
rational basis review. We express no view on the sound-
ness of the policy. We simply hold today that plaintiffs
have not demonstrated a likelihood of success on the
merits of their constitutional claim.
V
Because plaintiffs have not shown that they are likely to
succeed on the merits of their claims, we reverse the grant
of the preliminary injunction as an abuse of discretion.
Winter v. Natural Resources Defense Council, Inc., 555
U. S. 7, 32 (2008). The case now returns to the lower
courts for such further proceedings as may be appropriate.
Cite as: 585 U. S. ____ (2018) 39
Opinion of the Court
Our disposition of the case makes it unnecessary to con-
sider the propriety of the nationwide scope of the injunc-
tion issued by the District Court.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–965
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE KENNEDY, concurring.
I join the Court’s opinion in full.
There may be some common ground between the opin-
ions in this case, in that the Court does acknowledge that
in some instances, governmental action may be subject to
judicial review to determine whether or not it is “inexpli-
cable by anything but animus,” Romer v. Evans, 517 U. S.
620, 632 (1996), which in this case would be animosity to a
religion. Whether judicial proceedings may properly
continue in this case, in light of the substantial deference
that is and must be accorded to the Executive in the con-
duct of foreign affairs, and in light of today’s decision, is a
matter to be addressed in the first instance on remand.
And even if further proceedings are permitted, it would be
necessary to determine that any discovery and other pre-
liminary matters would not themselves intrude on the
foreign affairs power of the Executive.
In all events, it is appropriate to make this further
observation. There 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 oath that all
officials take to adhere to the Constitution is not confined
to those spheres in which the Judiciary can correct or even
2 TRUMP v. HAWAII
KENNEDY, J., concurring
comment upon what those officials say or do. Indeed, the
very fact that an official may have broad discretion, dis-
cretion free from judicial scrutiny, makes it all the more
imperative for him or her to adhere to the Constitution
and to its meaning and its promise.
The First Amendment prohibits the establishment of
religion and promises the free exercise of religion. From
these safeguards, and from the guarantee of freedom of
speech, it follows there is freedom of belief and expression.
It is an urgent necessity that officials adhere to these
constitutional guarantees and mandates in all their ac-
tions, even in the sphere of foreign affairs. An anxious
world must know that our Government remains commit-
ted always to the liberties the Constitution seeks to pre-
serve and protect, so that freedom extends outward, and
lasts.
Cite as: 585 U. S. ____ (2018) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–965
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
THOMAS, J., concurring.
I join the Court’s opinion, which highlights just a few of
the many problems with the plaintiffs’ claims. There are
several more. Section 1182(f) does not set forth any judi-
cially enforceable limits that constrain the President. See
Webster v. Doe, 486 U. S. 592, 600 (1988). Nor could it,
since the President has inherent authority to exclude
aliens from the country. See United States ex rel.
Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950);
accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018)
(THOMAS, J., dissenting) (slip op., at 13–14). Further, the
Establishment Clause does not create an individual right
to be free from all laws that a “reasonable observer” views
as religious or antireligious. See Town of Greece v. Gallo-
way, 572 U. S. ___, ___ (2014) (THOMAS, J., concurring in
part and concurring in judgment) (slip op., at 6); Elk Grove
Unified School Dist. v. Newdow, 542 U. S. 1, 52–53 (2004)
(THOMAS, J., concurring in judgment). The plaintiffs
cannot raise any other First Amendment claim, since the
alleged religious discrimination in this case was directed
at aliens abroad. See United States v. Verdugo-Urquidez,
494 U. S. 259, 265 (1990). And, even on its own terms, the
plaintiffs’ proffered evidence of anti-Muslim discrimina-
tion is unpersuasive.
Merits aside, I write separately to address the remedy
2 TRUMP v. HAWAII
THOMAS, J., concurring
that the plaintiffs sought and obtained in this case. The
District Court imposed an injunction that barred the
Government from enforcing the President’s Proclamation
against anyone, not just the plaintiffs. Injunctions that
prohibit the Executive Branch from applying a law or
policy against anyone—often called “universal” or “na-
tionwide” injunctions—have become increasingly com-
mon.1 District courts, including the one here, have begun
imposing universal injunctions without considering their
authority to grant such sweeping relief. These injunctions
are beginning to take a toll on the federal court system—
preventing legal questions from percolating through the
federal courts, encouraging forum shopping, and making
every case a national emergency for the courts and for the
Executive Branch.
I am skeptical that district courts have the authority to
enter universal injunctions. These injunctions did not
emerge until a century and a half after the founding. And
they appear to be inconsistent with longstanding limits on
equitable relief and the power of Article III courts. If
their popularity continues, this Court must address their
legality.
I
If district courts have any authority to issue universal
injunctions, that authority must come from a statute or
the Constitution. See Missouri v. Jenkins, 515 U. S. 70——————
1 “Nationwide
injunctions” is perhaps the more common term. But I
use the term “universal injunctions” in this opinion because it is more
precise. These injunctions are distinctive because they prohibit the
Government from enforcing a policy with respect to anyone, including
nonparties—not because they have wide geographic breadth. An
injunction that was properly limited to the plaintiffs in the case would
not be invalid simply because it governed the defendant’s conduct
nationwide.
Cite as: 585 U. S. ____ (2018) 3
THOMAS, J., concurring
124 (1995) (THOMAS, J., concurring). No statute expressly
grants district courts the power to issue universal injunc-
tions.2 So the only possible bases for these injunctions are
a generic statute that authorizes equitable relief or the
courts’ inherent constitutional authority. Neither of those
sources would permit a form of injunctive relief that is
“[in]consistent with our history and traditions.” Ibid.A
This Court has never treated general statutory grants of
equitable authority as giving federal courts a freewheeling
power to fashion new forms of equitable remedies. Rather,
it has read such statutes as constrained by “the body of
law which had been transplanted to this country from the
English Court of Chancery” in 1789. Guaranty Trust Co.
v. York, 326 U. S. 99, 105 (1945). As Justice Story ex-
plained, this Court’s “settled doctrine” under such statutes
is that “the remedies in equity are to be administered . . .
according to the practice of courts of equity in [England].”
Boyle v. Zacharie & Turner, 6 Pet. 648, 658 (1832). More
recently, this Court reiterated that broad statutory grants
of equitable authority give federal courts “ ‘an authority to
administer in equity suits the principles of the system of
judicial remedies which had been devised and was being
administered by the English Court of Chancery at the
time of the separation of the two countries.’ ” Grupo Mexi-
cano de Desarrollo S. A. v. Alliance Bond Fund, Inc., 527
U. S. 308, 318 (1999) (Scalia, J.) (quoting Atlas Life Ins.
Co. v. W. I. Southern, Inc., 306 U. S. 563, 568 (1939)).
——————
2 Even if Congress someday enacted a statute that clearly and ex-
pressly authorized universal injunctions, courts would need to consider
whether that statute complies with the limits that Article III places on
the authority of federal courts. See infra, at 7–8.
4 TRUMP v. HAWAII
THOMAS, J., concurring
B
The same is true of the courts’ inherent constitutional
authority to grant equitable relief, assuming any such
authority exists. See Jenkins, 515 U. S., at 124 (THOMAS,
J., concurring). This authority is also limited by the tradi-
tional rules of equity that existed at the founding.
The scope of the federal courts’ equitable authority
under the Constitution was a point of contention at the
founding, and the “more limited construction” of that
power prevailed. Id., at 126. The founding generation
viewed equity “with suspicion.” Id., at 128. Several anti-
Federalists criticized the Constitution’s extension of the
federal judicial power to “Case[s] in . . . Equity,” Art. III,
§2, as “giv[ing] the judge a discretionary power.” Letters
from The Federal Farmer No. XV (Jan. 18, 1788), in 2 The
Complete Anti-Federalist 315, 322 (H. Storing ed. 1981).
That discretionary power, the anti-Federalists alleged,
would allow courts to “explain the constitution according
to the reasoning spirit of it, without being confined to the
words or letter.” Essays of Brutus No. XI (Jan. 31, 1788),
in id., at 417, 419–420. The Federalists responded to this
concern by emphasizing the limited nature of equity.
Hamilton explained that the judiciary would be “bound
down by strict rules and precedents which serve to define
and point out their duty in every particular case that
comes before them.” The Federalist No. 78, p. 471 (C.
Rossiter ed. 1961) (Federalist). Although the purpose of a
court of equity was “to give relief in extraordinary cases,
which are exceptions to general rules,” “the principles by
which that relief is governed are now reduced to a regular
system.” Id. No. 83 at 505 (emphasis deleted).
The Federalists’ explanation was consistent with how
equity worked in 18th-century England. English courts of
equity applied established rules not only when they decided
the merits, but also when they fashioned remedies.
Like other aspects of equity, “the system of relief adminis-
Cite as: 585 U. S. ____ (2018) 5
THOMAS, J., concurring
tered by a court of equity” had been reduced “into a regu-
lar science.” 3 W. Blackstone, Commentaries on the Laws
of England 440–441 (1768) (Blackstone). As early as 1768,
Blackstone could state that the “remedy a suitor is enti-
tled to expect” could be determined “as readily and with as
much precision, in a court of equity as in a court of law.”
Id., at 441. Although courts of equity exercised remedial
“discretion,” that discretion allowed them to deny or tailor
a remedy despite a demonstrated violation of a right, not
to expand a remedy beyond its traditional scope. See G.
Keeton, An Introduction to Equity 117–118 (1938).
In short, whether the authority comes from a statute or
the Constitution, district courts’ authority to provide
equitable relief is meaningfully constrained. This author-
ity must comply with longstanding principles of equity
that predate this country’s founding.
II
Universal injunctions do not seem to comply with those
principles. These injunctions are a recent development,
emerging for the first time in the 1960s and dramatically
increasing in popularity only very recently. And they
appear to conflict with several traditional rules of equity,
as well as the original understanding of the judicial role.
Equity originated in England as a means for the Crown
to dispense justice by exercising its sovereign authority.
See Adams, The Origins of English Equity, 16 Colum.
L. Rev. 87, 91 (1916). Petitions for equitable relief were
referred to the Chancellor, who oversaw cases in equity.
See 1 S. Symon’s, Pomeroy’s, Equity Jurisprudence §33
(5th ed. 1941) (Pomeroy); G. McDowell, Equity and the
Constitution 24 (1982). The Chancellor’s equitable juris-
diction was based on the “reserve of justice in the king.” F.
Maitland, Equity 3 (2d ed. 1936); see also 1 Pomeroy §33,
at 38 (describing the Chancellor’s equitable authority as
an “extraordinary jurisdiction—that of Grace—by delega-
6 TRUMP v. HAWAII
THOMAS, J., concurring
tion” from the King). Equity allowed the sovereign to
afford discretionary relief to parties where relief would not
have been available under the “rigors of the common law.”
Jenkins, supra, at 127 (opinion of THOMAS, J.).
The English system of equity did not contemplate uni-
versal injunctions. As an agent of the King, the Chancel-
lor had no authority to enjoin him. See Bray, Multiple
Chancellors: Reforming the National Injunction, 131 Harv.
L. Rev. 417, 425 (2017) (Bray). The Chancellor could not
give “any relief against the king, or direct any act to be
done by him, or make any decree disposing of or affecting
his property; not even in cases where he is a royal trus-
tee.” 3 Blackstone 428. The Attorney General could be
sued in Chancery, but not in cases that “ ‘immediately
concerned’ ” the interests of the Crown. Bray 425 (citing 1
E. Daniell, The Practice of the High Court of Chancery 138
(2d ed. 1845)). American courts inherited this tradition.
See J. Story, Commentaries on Equity Pleadings §69
(1838) (Story).
Moreover, as a general rule, American courts of equity
did not provide relief beyond the parties to the case. If
their injunctions advantaged nonparties, that benefit was
merely incidental. Injunctions barring public nuisances
were an example. While these injunctions benefited third
parties, that benefit was merely a consequence of provid-
ing relief to the plaintiff. Woolhandler & Nelson, Does
History Defeat Standing Doctrine? 102 Mich. L. Rev. 689,
702 (2004) (Woolhandler & Nelson); see Pennsylvania v.
Wheeling & Belmont Bridge Co., 13 How. 518, 564 (1852)
(explaining that a private “injury makes [a public nui-
sance] a private nuisance to the injured party”).
True, one of the recognized bases for an exercise of
equitable power was the avoidance of “multiplicity of
suits.” Bray 426; accord, 1 Pomeroy §243. Courts would
employ “bills of peace” to consider and resolve a number of
suits in a single proceeding. Id., §246. And some authori-
Cite as: 585 U. S. ____ (2018) 7
THOMAS, J., concurring
ties stated that these suits could be filed by one plaintiff
on behalf of a number of others. Id., §251. But the “gen-
eral rule” was that “all persons materially interested . . .
in the subject-matter of a suit, are to be made parties to it
. . . , however numerous they may be, so that there may be
a complete decree, which shall bind them all.” Story §72,
at 61 (emphasis added). And, in all events, these “proto-
class action[s]” were limited to a small group of similarly
situated plaintiffs having some right in common. Bray
426–427; see also Story §120, at 100 (explaining that such
suits were “always” based on “a common interest or a
common right”).
American courts’ tradition of providing equitable relief
only to parties was consistent with their view of the na-
ture of judicial power. For most of our history, courts
understood judicial power as “fundamentall[y] the power
to render judgments in individual cases.” Murphy v.
National Collegiate Athletic Assn., 584 U. S. ___, ___–___
(2018) (THOMAS, J., concurring) (slip op., at 2–3). They did
not believe that courts could make federal policy, and they
did not view judicial review in terms of “striking down”
laws or regulations. See id., at ___–___ (slip op., at 3–4).
Misuses of judicial power, Hamilton reassured the people
of New York, could not threaten “the general liberty of the
people” because courts, at most, adjudicate the rights of
“individual[s].” Federalist No. 78, at 466.
The judiciary’s limited role was also reflected in this
Court’s decisions about who could sue to vindicate certain
rights. See Spokeo, Inc. v. Robins, 578 U. S. ___, ___–___
(2016) (THOMAS, J., concurring) (slip op., at 2–4). A plain-
tiff could not bring a suit vindicating public rights—i.e.,
rights held by the community at large—without a showing
of some specific injury to himself. Id., at ___–___ (slip op.,
at 3–4). And a plaintiff could not sue to vindicate the
private rights of someone else. See Woolhandler & Nelson
715–716. Such claims were considered to be beyond the
8 TRUMP v. HAWAII
THOMAS, J., concurring
authority of courts. Id., at 711–717.
This Court has long respected these traditional limits on
equity and judicial power. See, e.g., Scott v. Donald, 165
U. S. 107, 115 (1897) (rejecting an injunction based on the
theory that the plaintiff “so represents [a] class” whose
rights were infringed by a statute as “too conjectural to
furnish a safe basis upon which a court of equity ought to
grant an injunction”). Take, for example, this Court’s
decision in Massachusetts v. Mellon, 262 U. S. 447 (1923).
There, a taxpayer sought to enjoin the enforcement of an
appropriation statute. The Court noted that this kind of
dispute “is essentially a matter of public and not of indi-
vidual concern.” Id., at 487. A general interest in enjoin-
ing implementation of an illegal law, this Court explained,
provides “no basis . . . for an appeal to the preventive
powers of a court of equity.” Ibid. Courts can review the
constitutionality of an act only when “a justiciable issue”
requires it to decide whether to “disregard an unconstitu-
tional enactment.” Id., at 488. If the statute is unconsti-
tutional, then courts enjoin “not the execution of the stat-
ute, but the acts of the official.” Ibid. Courts cannot issue
an injunction based on a mere allegation “that officials of
the executive department of the government are executing
and will execute an act of Congress asserted to be uncon-
stitutional.” Ibid. “To do so would be not to decide a
judicial controversy.” Id., at 488–489.
By the latter half of the 20th century, however, some
jurists began to conceive of the judicial role in terms of
resolving general questions of legality, instead of address-
ing those questions only insofar as they are necessary to
resolve individual cases and controversies. See Bray 451.
That is when what appears to be “the first [universal]
injunction in the United States” emerged. Bray 438. In
Wirtz v. Baldor Elec. Co., 337 F. 2d 518 (CADC 1963), the
Court of Appeals for the District of Columbia Circuit
addressed a lawsuit challenging the Secretary of Labor’s
Cite as: 585 U. S. ____ (2018) 9
THOMAS, J., concurring
determination of the prevailing minimum wage for a
particular industry. Id., at 520. The D. C. Circuit con-
cluded that the Secretary’s determination was unsupported,
but remanded for the District Court to assess whether
any of the plaintiffs had standing to challenge it. Id., at
521–535. The D. C. Circuit also addressed the question of
remedy, explaining that if a plaintiff had standing to sue
then “the District Court should enjoin . . . the Secretary’s
determination with respect to the entire industry.” Id., at
535 (emphasis added). To justify this broad relief, the
D. C. Circuit explained that executive officers should
honor judicial decisions “in all cases of essentially the
same character.” Id., at 534. And it noted that, once a
court has decided an issue, it “would ordinarily give the
same relief to any individual who comes to it with an
essentially similar cause of action.” Ibid. The D. C. Cir-
cuit added that the case was “clearly a proceeding in
which those who have standing are here to vindicate the
public interest in having congressional enactments prop-
erly interpreted and applied.” Id., at 534–535.
Universal injunctions remained rare in the decades
following Wirtz. See Bray 440–445. But recently, they
have exploded in popularity. See id., at 457–459. Some
scholars have criticized the trend. See generally id., at
457–465; Morley, Nationwide Injunctions, Rule 23(b)(2),
and the Remedial Powers of the Lower Courts, 97 B. U.
L. Rev. 615, 633–653 (2017); Morley, De Facto Class Ac-
tions? Plaintiff- and Defendant-Oriented Injunctions in
Voting Rights, Election Law, and Other Constitutional
Cases, 39 Harv. J. L. & Pub. Pol’y 487, 521–538 (2016).
No persuasive defense has yet been offered for the prac-
tice. Defenders of these injunctions contend that they
ensure that individuals who did not challenge a law are
treated the same as plaintiffs who did, and that universal
injunctions give the judiciary a powerful tool to check the
Executive Branch. See Amdur & Hausman, Nationwide
10 TRUMP v. HAWAII
THOMAS, J., concurring
Injunctions and Nationwide Harm, 131 Harv. L. Rev.
Forum 49, 51, 54 (2017); Malveaux, Class Actions, Civil
Rights, and the National Injunction, 131 Harv. L. Rev.
Forum 56, 57, 60–62 (2017). But these arguments do not
explain how these injunctions are consistent with the
historical limits on equity and judicial power. They at
best “boi[l] down to a policy judgment” about how powers
ought to be allocated among our three branches of gov-
ernment. Perez v. Mortgage Bankers Assn., 575 U. S. ___,
___ (2015) (THOMAS, J., concurring in judgment) (slip op.,
at 23). But the people already made that choice when they
ratified the Constitution.
* * *
In sum, universal injunctions are legally and historically
dubious. If federal courts continue to issue them, this
Court is dutybound to adjudicate their authority to do so.
Cite as: 585 U. S. ____ (2018) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–965
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE BREYER, with whom JUSTICE KAGAN joins,
dissenting.
The question before us is whether Proclamation No.
9645 is lawful. If its promulgation or content was signifi-
cantly affected by religious animus against Muslims, it
would violate the relevant statute or the First Amendment
itself. See 8 U. S. C. §1182(f) (requiring “find[ings]” that
persons denied entry “would be detrimental to the inter-
ests of the United States”); Church of Lukumi Babalu Aye,
Inc. v. Hialeah, 508 U. S. 520 (1993) (First Amendment);
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Comm’n, 584 U. S. ___ (2018) (same); post, at 2–4
(SOTOMAYOR, J., dissenting). If, however, its sole ratio
decidendi was one of national security, then it would be
unlikely to violate either the statute or the Constitution.
Which is it? Members of the Court principally disagree
about the answer to this question, i.e., about whether or
the extent to which religious animus played a significant
role in the Proclamation’s promulgation or content.
In my view, the Proclamation’s elaborate system of
exemptions and waivers can and should help us answer
this question. That system provides for case-by-case
consideration of persons who may qualify for visas despite
the Proclamation’s general ban. Those persons include
lawful permanent residents, asylum seekers, refugees,
2 TRUMP v. HAWAII
BREYER, J., dissenting
students, children, and numerous others. There are likely
many such persons, perhaps in the thousands. And I
believe it appropriate to take account of their Proclamation-
granted status when considering the Proclamation’s
lawfulness. The Solicitor General asked us to consider the
Proclamation “as” it is “written” and “as” it is “applied,”
waivers and exemptions included. Tr. of Oral Arg. 38. He
warned us against considering the Proclamation’s lawful-
ness “on the hypothetical situation that [the Proclamation]
is what it isn’t,” ibid., while telling us that its waiver and
exemption provisions mean what they say: The Proclama-
tion does not exclude individuals from the United States
“if they meet the criteria” for a waiver or exemption. Id.,
at 33.
On the one hand, if the Government is applying the
exemption and waiver provisions as written, then its
argument for the Proclamation’s lawfulness is strength-
ened. For one thing, the Proclamation then resembles
more closely the two important Presidential precedents on
point, President Carter’s Iran order and President
Reagan’s Cuba proclamation, both of which contained
similar categories of persons authorized to obtain case-by-
case exemptions. Ante, at 36–37; Exec. Order No. 12172,
44 Fed. Reg. 67947 (1979), as amended by Exec. Order No.
12206, 45 Fed. Reg. 24101 (1980); Presidential Proclama-
tion No. 5517, 51 Fed. Reg. 30470 (1986). For another
thing, the Proclamation then follows more closely the basic
statutory scheme, which provides for strict case-by-case
scrutiny of applications. It would deviate from that sys-
tem, not across the board, but where circumstances may
require that deviation.
Further, since the case-by-case exemptions and waivers
apply without regard to the individual’s religion, applica-
tion of that system would help make clear that the Proc-
lamation does not deny visas to numerous Muslim indi-
viduals (from those countries) who do not pose a security
Cite as: 585 U. S. ____ (2018) 3
BREYER, J., dissenting
threat. And that fact would help to rebut the First
Amendment claim that the Proclamation rests upon anti-
Muslim bias rather than security need. Finally, of course,
the very fact that Muslims from those countries would
enter the United States (under Proclamation-provided
exemptions and waivers) would help to show the same
thing.
On the other hand, if the Government is not applying
the system of exemptions and waivers that the Proclama-
tion contains, then its argument for the Proclamation’s
lawfulness becomes significantly weaker. For one thing,
the relevant precedents—those of Presidents Carter and
Reagan—would bear far less resemblance to the present
Proclamation. Indeed, one might ask, if those two Presi-
dents thought a case-by-case exemption system appropri-
ate, what is different about present circumstances that
would justify that system’s absence?
For another thing, the relevant statute requires that
there be “find[ings]” that the grant of visas to excluded
persons would be “detrimental to the interests of the
United States.” §1182(f ). Yet there would be no such
findings in respect to those for whom the Proclamation
itself provides case-by-case examination (followed by the
grant of a visa in appropriate cases).
And, perhaps most importantly, if the Government is
not applying the Proclamation’s exemption and waiver
system, the claim that the Proclamation is a “Muslim
ban,” rather than a “security-based” ban, becomes much
stronger. How could the Government successfully claim
that the Proclamation rests on security needs if it is ex-
cluding Muslims who satisfy the Proclamation’s own
terms? At the same time, denying visas to Muslims who
meet the Proclamation’s own security terms would support
the view that the Government excludes them for reasons
based upon their religion.
Unfortunately there is evidence that supports the sec-
4 TRUMP v. HAWAII
BREYER, J., dissenting
ond possibility, i.e., that the Government is not applying
the Proclamation as written. The Proclamation provides
that the Secretary of State and the Secretary of Homeland
Security “shall coordinate to adopt guidance” for consular
officers to follow when deciding whether to grant a waiver.
§3(c)(ii). Yet, to my knowledge, no guidance has issued.
The only potentially relevant document I have found
consists of a set of State Department answers to certain
Frequently Asked Questions, but this document simply
restates the Proclamation in plain language for visa appli-
cants. It does not provide guidance for consular officers as
to how they are to exercise their discretion. See Dept. of
State, FAQs on the Presidential Proclamation, https://
travel.state.gov/content/travel/en/us-visas/visa-information-
resources/presidential-proclamation-archive/2017-12-04-
Presidential-Proclamation.html (all Internet materials as
last visited June 25, 2018).
An examination of publicly available statistics also
provides cause for concern. The State Department reported
that during the Proclamation’s first month, two waivers
were approved out of 6,555 eligible applicants. Letter
from M. Waters, Assistant Secretary Legislative Affairs, to
Sen. Van Hollen (Feb. 22, 2018). In its reply brief, the
Government claims that number increased from 2 to 430
during the first four months of implementation. Reply
Brief 17. That number, 430, however, when compared
with the number of pre-Proclamation visitors, accounts for
a miniscule percentage of those likely eligible for visas, in
such categories as persons requiring medical treatment,
academic visitors, students, family members, and others
belonging to groups that, when considered as a group
(rather than case by case), would not seem to pose security
threats.
Amici have suggested that there are numerous appli-
cants who could meet the waiver criteria. For instance,
the Proclamation anticipates waivers for those with “sig-
Cite as: 585 U. S. ____ (2018) 5
BREYER, J., dissenting
nificant business or professional obligations” in the United
States, §3(c)(iv)(C), and amici identify many scholars who
would seem to qualify. Brief for Colleges and Universities
as Amici Curiae 25–27; Brief for American Council on
Education et al. as Amici Curiae 20 (identifying more than
2,100 scholars from covered countries); see also Brief for
Massachusetts Technology Leadership Council, Inc., as
Amicus Curiae 14–15 (identifying technology and business
leaders from covered countries). The Proclamation also
anticipates waivers for those with a “close family member
(e.g., a spouse, child, or parent)” in the United States,
§3(c)(iv)(D), and amici identify many such individuals
affected by the Proclamation. Brief for Labor Organiza-
tions as Amici Curiae 15–18 (identifying children and
other relatives of U. S. citizens). The Pars Equality Cen-
ter identified 1,000 individuals—including parents and
children of U. S. citizens—who sought and were denied
entry under the Proclamation, hundreds of whom seem to
meet the waiver criteria. See Brief for Pars Equality
Center et al. as Amici Curiae 12–28.
Other data suggest the same. The Proclamation does
not apply to asylum seekers or refugees. §§3(b)(vi), 6(e).
Yet few refugees have been admitted since the Proclama-
tion took effect. While more than 15,000 Syrian refugees
arrived in the United States in 2016, only 13 have arrived
since January 2018. Dept. of State, Bureau of Population,
Refugees, and Migration, Interactive Reporting, Refugee
Processing Center, http://ireports.wrapsnet.org. Similarly
few refugees have been admitted since January from Iran
(3), Libya (1), Yemen (0), and Somalia (122). Ibid.
The Proclamation also exempts individuals applying for
several types of nonimmigrant visas: lawful permanent
residents, parolees, those with certain travel documents,
dual nationals of noncovered countries, and representa-
tives of governments or international organizations.
§§3(b)(i)–(v). It places no restrictions on the vast majority
6 TRUMP v. HAWAII
BREYER, J., dissenting
of student and exchange visitors, covering only those from
Syria, which provided 8 percent of student and exchange
visitors from the five countries in 2016. §§2(b)–(h); see
Dept. of State, Report of the Visa Office 2016, Table XVII
Nonimmigrant Visas Issued Fiscal Year 2016 (Visa Report
2016 Table XVII). Visitors from Somalia are eligible for
any type of nonimmigrant visa, subject to “additional
scrutiny.” §2(h)(ii). If nonimmigrant visa applications
under the Proclamation resemble those in 2016, 16 per-
cent of visa applicants would be eligible for exemptions.
See Visa Report 2016 Table XVII.
In practice, however, only 258 student visas were issued
to applicants from Iran (189), Libya (29), Yemen (40), and
Somalia (0) in the first three months of 2018. See Dept. of
State, Nonimmigrant Visa Issuances by Nationality, Jan.,
Feb., and Mar. 2018. This is less than a quarter of the
volume needed to be on track for 2016 student visa levels.
And only 40 nonimmigrant visas have been issued to
Somali nationals, a decrease of 65 percent from 2016.
Ibid.; see Visa Report 2016 Table XVII. While this is but a
piece of the picture, it does not provide grounds for
confidence.
Anecdotal evidence further heightens these concerns.
For example, one amicus identified a child with cerebral
palsy in Yemen. The war had prevented her from receiv-
ing her medication, she could no longer move or speak,
and her doctors said she would not survive in Yemen. Her
visa application was denied. Her family received a form
with a check mark in the box unambiguously confirming
that “ ‘a waiver will not be granted in your case.’ ” Letter
from L. Blatt to S. Harris, Clerk of Court (May 1, 2018).
But after the child’s case was highlighted in an amicus
brief before this Court, the family received an update from
the consular officer who had initially denied the waiver. It
turns out, according to the officer, that she had all along
determined that the waiver criteria were met. But, the
Cite as: 585 U. S. ____ (2018) 7
BREYER, J., dissenting
officer explained, she could not relay that information at
the time because the waiver required review from a super-
visor, who had since approved it. The officer said that the
family’s case was now in administrative processing and
that she was attaching a “ ‘revised refusal letter indicating
the approval of the waiver.’ ” Ibid. The new form did not
actually approve the waiver (in fact, the form contains no
box saying “granted”). But a different box was now
checked, reading: “ ‘The consular officer is reviewing your
eligibility for a waiver under the Proclamation. . . . This
can be a lengthy process, and until the consular officer can
make an individualized determination of [the relevant]
factors, your visa application will remain refused under
Section 212(f) [of the Proclamation].’ ” Ibid. One is left to
wonder why this second box, indicating continuing review,
had not been checked at the outset if in fact the child’s
case had remained under consideration all along. Though
this is but one incident and the child was admitted after
considerable international attention in this case, it pro-
vides yet more reason to believe that waivers are not being
processed in an ordinary way.
Finally, in a pending case in the Eastern District of New
York, a consular official has filed a sworn affidavit assert-
ing that he and other officials do not, in fact, have discre-
tion to grant waivers. According to the affidavit, consular
officers “were not allowed to exercise that discretion” and
“the waiver [process] is merely ‘window dressing.’ ” See
Decl. of Christopher Richardson, Alharbi v. Miller, No.
1:18-cv-2435 (June 1, 2018), pp. 3–4. Another report
similarly indicates that the U. S. Embassy in Djibouti,
which processes visa applications for citizens of Yemen,
received instructions to grant waivers “only in rare cases
of imminent danger,” with one consular officer reportedly
telling an applicant that “ ‘[e]ven for infants, we would
need to see some evidence of a congenital heart defect or
another medical issue of that degree of difficulty
8 TRUMP v. HAWAII
BREYER, J., dissenting
that . . . would likely lead to the child’s developmental
harm or death.’ ” Center for Constitutional Rights and the
Rule of Law Clinic, Yale Law School, Window Dressing the
Muslim Ban: Reports of Waivers and Mass Denials from
Yemeni-American Families Stuck in Limbo 18 (2018).
Declarations, anecdotal evidence, facts, and numbers
taken from amicus briefs are not judicial factfindings. The
Government has not had an opportunity to respond, and a
court has not had an opportunity to decide. But, given the
importance of the decision in this case, the need for assur-
ance that the Proclamation does not rest upon a “Muslim
ban,” and the assistance in deciding the issue that an-
swers to the “exemption and waiver” questions may pro-
vide, I would send this case back to the District Court for
further proceedings. And, I would leave the injunction in
effect while the matter is litigated. Regardless, the
Court’s decision today leaves the District Court free to
explore these issues on remand.
If this Court must decide the question without this
further litigation, I would, on balance, find the evidence of
antireligious bias, including statements on a website
taken down only after the President issued the two execu-
tive orders preceding the Proclamation, along with the
other statements also set forth in JUSTICE SOTOMAYOR’s
opinion, a sufficient basis to set the Proclamation aside.
And for these reasons, I respectfully dissent.
Cite as: 585 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–965
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
The United States of America is a Nation built upon the
promise of religious liberty. Our Founders honored that
core promise by embedding the principle of religious neu­
trality in the First Amendment. The Court’s decision
today fails to safeguard that fundamental principle. It
leaves undisturbed a policy first advertised openly and
unequivocally as a “total and complete shutdown of Mus­
lims entering the United States” because the policy now
masquerades behind a façade of national-security con­
cerns. But this repackaging does little to cleanse Presi­
dential Proclamation No. 9645 of the appearance of dis­
crimination that the President’s words have created.
Based on the evidence in the record, a reasonable observer
would conclude that the Proclamation was motivated by
anti-Muslim animus. That alone suffices to show that
plaintiffs are likely to succeed on the merits of their Estab­
lishment Clause claim. The majority holds otherwise by
ignoring the facts, misconstruing our legal precedent, and
turning a blind eye to the pain and suffering the Procla­
mation inflicts upon countless families and individuals,
many of whom are United States citizens. Because that
troubling result runs contrary to the Constitution and our
precedent, I dissent.
2 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
I
Plaintiffs challenge the Proclamation on various
grounds, both statutory and constitutional. Ordinarily,
when a case can be decided on purely statutory grounds,
we strive to follow a “prudential rule of avoiding constitu­
tional questions.” Zobrest v. Catalina Foothills School
Dist., 509 U. S. 1, 8 (1993). But that rule of thumb is far
from categorical, and it has limited application where, as
here, the constitutional question proves far simpler than
the statutory one. Whatever the merits of plaintiffs’ com­
plex statutory claims, the Proclamation must be enjoined
for a more fundamental reason: It runs afoul of the Estab­
lishment Clause’s guarantee of religious neutrality.
A
The Establishment Clause forbids government policies
“respecting an establishment of religion.” U. S. Const.,
Amdt. 1. The “clearest command” of the Establishment
Clause is that the Government cannot favor or disfavor
one religion over another. Larson v. Valente, 456 U. S.
228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 532 (1993) (“[T]he First Amend­
ment forbids an official purpose to disapprove of a particu­
lar religion”); Edwards v. Aguillard, 482 U. S. 578, 593
(1987) (“The Establishment Clause . . . forbids alike the
preference of a religious doctrine or the prohibition of
theory which is deemed antagonistic to a particular dogma”
(internal quotation marks omitted)); Lynch v. Donnelly,
465 U. S. 668, 673 (1984) (noting that the Establishment
Clause “forbids hostility toward any [religion],” because
“such hostility would bring us into ‘war with our national
tradition as embodied in the First Amendmen[t]’ ”); Epper­
son v. Arkansas, 393 U. S. 97, 106 (1968) (“[T]he State
may not adopt programs or practices . . . which aid or
oppose any religion. This prohibition is absolute” (citation
and internal quotation marks omitted)). Consistent with
Cite as: 585 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
that clear command, this Court has long acknowledged
that governmental actions that favor one religion “inevi­
tabl[y]” foster “the hatred, disrespect and even contempt of
those who [hold] contrary beliefs.” Engel v. Vitale, 370
U. S. 421, 431 (1962). That is so, this Court has held,
because such acts send messages to members of minority
faiths “ ‘that they are outsiders, not full members of the
political community.’ ” Santa Fe Independent School Dist.
v. Doe, 530 U. S. 290, 309 (2000). To guard against this
serious harm, the Framers mandated a strict “principle of
denominational neutrality.” Larson, 456 U. S., at 246;
Board of Ed. of Kiryas Joel Village School Dist. v. Grumet,
512 U. S. 687, 703 (1994) (recognizing the role of courts in
“safeguarding a principle at the heart of the Establish­
ment Clause, that government should not prefer one reli­
gion to another, or religion to irreligion”).
“When the government acts with the ostensible and
predominant purpose” of disfavoring a particular 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 Ky.,
545 U. S. 844, 860 (2005). To determine whether plaintiffs
have proved an Establishment Clause violation, the Court
asks whether a reasonable observer would view the gov­
ernment action as enacted for the purpose of disfavoring a
religion. See id., at 862, 866; accord, Town of Greece v.
Galloway, 572 U. S. ___, ___ (2014) (plurality opinion) (slip
op., at 19).
In answering that question, this Court has generally
considered the text of the government policy, its operation,
and any available evidence regarding “the historical back­
ground of the decision under challenge, the specific series
of events leading to the enactment or official policy in
question, and the legislative or administrative history,
including contemporaneous statements made by” the
4 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
decisionmaker. Lukumi, 508 U. S., at 540 (opinion of
KENNEDY, J.); McCreary, 545 U. S., at 862 (courts must
evaluate “text, legislative history, and implementation
. . . , or comparable official act” (internal quotation marks
omitted)). At the same time, however, courts must take
care not to engage in “any judicial psychoanalysis of a
drafter’s heart of hearts.” Id., at 862.
B
1
Although the majority briefly recounts a few of the
statements and background events that form the basis of
plaintiffs’ constitutional challenge, ante, at 27–28, that
highly abridged account does not tell even half of the
story. See Brief for The Roderick & Solange MacArthur
Justice Center as Amicus Curiae 5–31 (outlining President
Trump’s public statements expressing animus toward
Islam). The full record paints a far more harrowing pic­
ture, from which a reasonable observer would readily
conclude that the Proclamation was motivated by hostility
and animus toward the Muslim faith.
During his Presidential campaign, then-candidate Don­
ald Trump pledged that, if elected, he would ban Muslims
from entering the United States. Specifically, on Decem­
ber 7, 2015, he issued a formal statement “calling for a
total and complete shutdown of Muslims entering the
United States.” App. 119. That statement, which re­
mained on his campaign website until May 2017 (several
months into his Presidency), read in full:
“Donald J. Trump is calling for a total and complete
shutdown of Muslims entering the United States until
our country’s representatives can figure out what is
going on. According to Pew Research, among others,
there is great hatred towards Americans by large
segments of the Muslim population. Most recently, a
poll from the Center for Security Policy released data
Cite as: 585 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
showing ‘25% of those polled agreed that violence
against Americans here in the United States is justi­
fied as a part of the global jihad’ and 51% of those
polled ‘agreed that Muslims in America should have
the choice of being governed according to Shariah.’
Shariah authorizes such atrocities as murder against
nonbelievers who won’t convert, beheadings and more
unthinkable acts that pose great harm to Americans,
especially women.
“Mr. Trum[p] stated, ‘Without looking at the vari­
ous polling data, it is obvious to anybody the hatred is
beyond comprehension. Where this hatred comes
from and why we will have to determine. Until we are
able to determine and understand this problem and
the dangerous threat it poses, our country cannot be
the victims of the horrendous attacks by people that
believe only in Jihad, and have no sense of reason or
respect of human life. If I win the election for Presi­
dent, we are going to Make America Great Again.’—
Donald J. Trump.” Id., at 158; see also id., at 130–
131.
On December 8, 2015, Trump justified his proposal
during a television interview by noting that President
Franklin D. Roosevelt “did the same thing” with respect to
the internment of Japanese Americans during World War
II. Id., at 120. In January 2016, during a Republican
primary debate, Trump was asked whether he wanted to
“rethink [ his] position” on “banning Muslims from enter­
ing the country.” Ibid. He answered, “No.” Ibid. A
month later, at a rally in South Carolina, Trump told an
apocryphal story about United States General John J.
Pershing killing a large group of Muslim insurgents in the
Philippines with bullets dipped in pigs’ blood in the early
1900’s. Id., at 163–164. In March 2016, he expressed his
belief that “Islam hates us. . . . [W]e can’t allow people
6 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
coming into this country who have this hatred of the United
States . . . [a]nd of people that are not Muslim.” Id., at
120–121. That same month, Trump asserted that “[w]e’re
having problems with the Muslims, and we’re having
problems with Muslims coming into the country.” Id., at
121. He therefore called for surveillance of mosques in the
United States, blaming terrorist attacks on Muslims’ lack
of “assimilation” and their commitment to “sharia law.”
Ibid.; id., at 164. A day later, he opined that Muslims “do
not respect us at all” and “don’t respect a lot of the things
that are happening throughout not only our country, but
they don’t respect other things.” Ibid.
As Trump’s presidential campaign progressed, he began
to describe his policy proposal in slightly different terms.
In June 2016, for instance, he characterized the policy
proposal as a suspension of immigration from countries
“where there’s a proven history of terrorism.” Id., at 121.
He also described the proposal as rooted in the need to
stop “importing radical Islamic terrorism to the West
through a failed immigration system.” Id., at 121–122.
Asked in July 2016 whether he was “pull[ing] back from”
his pledged Muslim ban, Trump responded, “I actually
don’t think it’s a rollback. In fact, you could say it’s an
expansion.” Id., at 122–123. He then explained that he
used different terminology because “[p]eople were so upset
when [he] used the word Muslim.” Id., at 123.
A month before the 2016 election, Trump reiterated that
his proposed “Muslim ban” had “morphed into a[n] ex­
treme vetting from certain areas of the world.” Ibid.
Then, on December 21, 2016, President-elect Trump was
asked whether he would “rethink” his previous “plans to
create a Muslim registry or ban Muslim immigration.”
Ibid. He replied: “You know my plans. All along, I’ve
proven to be right.” Ibid.
On January 27, 2017, one week after taking office,
President Trump signed Executive Order No. 13769, 82
Cite as: 585 U. S. ____ (2018) 7
SOTOMAYOR, J., dissenting
Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the
Nation From Foreign Terrorist Entry Into the United
States.” As he signed it, President Trump read the title,
looked up, and said “We all know what that means.” App.
124. That same day, President Trump explained to the
media that, under EO–1, Christians would be given prior-
ity for entry as refugees into the United States. In particu­
lar, he bemoaned the fact that in the past, “[i]f you were a
Muslim [refugee from Syria] you could come in, but if you
were a Christian, it was almost impossible.” Id., at 125.
Considering that past policy “very unfair,” President
Trump explained that EO–1 was designed “to help” the
Christians in Syria. Ibid. The following day, one of Presi­
dent Trump’s key advisers candidly drew the connection
between EO–1 and the “Muslim ban” that the President
had pledged to implement if elected. Ibid. According to
that adviser, “[W]hen [Donald Trump] first announced it,
he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it
legally.’ ” Ibid.
On February 3, 2017, the United States District Court
for the Western District of Washington enjoined the en­
forcement of EO–1. See Washington v. Trump, 2017 WL
462040, *3. The Ninth Circuit denied the Government’s
request to stay that injunction. Washington v. Trump, 847
F. 3d 1151, 1169 (2017) (per curiam). Rather than appeal
the Ninth Circuit’s decision, the Government declined to
continue defending EO–1 in court and instead announced
that the President intended to issue a new executive order
to replace EO–1.
On March 6, 2017, President Trump issued that new
executive order, which, like its predecessor, imposed tem­
porary entry and refugee bans. See Exec. Order No.
13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s
senior advisers publicly explained that EO–2 would “have
the same basic policy outcome” as EO–1, and that any
8 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
changes would address “very technical issues that were
brought up by the court.” App. 127. After EO–2 was
issued, the White House Press Secretary told reporters
that, by issuing EO–2, President Trump “continue[d] to
deliver on . . . his most significant campaign promises.”
Id., at 130. That statement was consistent with President
Trump’s own declaration that “I keep my campaign prom­
ises, and our citizens will be very happy when they see the
result.” Id., at 127–128.
Before EO–2 took effect, federal District Courts in Ha­
waii and Maryland enjoined the order’s travel and refugee
bans. See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239
(Haw. 2017); International Refugee Assistance Project
(IRAP) v. Trump, 241 F. Supp. 3d 539, 566 (Md. 2017).
The Fourth and Ninth Circuits upheld those injunctions in
substantial part. IRAP v. Trump, 857 F. 3d 554, 606 (CA4
2017) (en banc); Hawaii v. Trump, 859 F. 3d 741, 789
(CA9 2017) (per curiam). In June 2017, this Court granted
the Government’s petition for certiorari and issued a per
curiam opinion partially staying the District Courts’ in­
junctions pending further review. In particular, the Court
allowed EO–2’s travel ban to take effect except as to “for­
eign nationals who have a credible claim of a bona fide
relationship with a person or entity in the United States.”
Trump v. IRAP, 582 U. S. ___, ___ (2017) (slip op., at 12).
While litigation over EO–2 was ongoing, President
Trump repeatedly made statements alluding to a desire to
keep Muslims out of the country. For instance, he said at
a rally of his supporters that EO–2 was just a “watered
down version of the first one” and had been “tailor[ed]” at
the behest of “the lawyers.” App. 131. He further added
that he would prefer “to go back to the first [executive
order] and go all the way” and reiterated his belief that it
was “very hard” for Muslims to assimilate into Western
culture. Id., at 131–132. During a rally in April 2017,
President Trump recited the lyrics to a song called “The
Cite as: 585 U. S. ____ (2018) 9
SOTOMAYOR, J., dissenting
Snake,” a song about a woman who nurses a sick snake
back to health but then is attacked by the snake, as a
warning about Syrian refugees entering the country. Id.,
at 132, 163. And in June 2017, the President stated on
Twitter that the Justice Department had submitted a
“watered down, politically correct version” of the “original
Travel Ban” “to S[upreme] C[ourt].”1 Id., at 132. The
President went on to tweet: “People, the lawyers and the
courts can call it whatever they want, but I am calling it
what we need and what it is, a TRAVEL BAN!” Id., at
132–133. He added: “That’s right, we need a TRAVEL
BAN for certain DANGEROUS countries, not some politi­
cally correct term that won’t help us protect our people!”
Id., at 133. Then, on August 17, 2017, President Trump
issued yet another tweet about Islam, once more referenc­
ing the story about General Pershing’s massacre of Mus­
lims in the Philippines: “Study what General Pershing . . .
did to terrorists when caught. There was no more Radical
Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d
233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in
original).
In September 2017, President Trump tweeted that “[t]he
travel ban into the United States should be far larger,
tougher and more specific—but stupidly, that would not be
politically correct!” App. 133. Later that month, on Sep­
tember 24, 2017, President Trump issued Presidential
Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proc­
lamation), which restricts entry of certain nationals from
six Muslim-majority countries. On November 29, 2017,
President Trump “retweeted” three anti-Muslim videos,
entitled “Muslim Destroys a Statue of Virgin Mary!”,
“Islamist mob pushes teenage boy off roof and beats him to
death!”, and “Muslim migrant beats up Dutch boy on
——————
1 According to the White House, President Trump’s statements on
Twitter are “official statements.” App. 133.
10 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
crutches!”2 IRAP II , 883 F. 3d, at 267. Those videos were
initially tweeted by a British political party whose mission
is to oppose “all alien and destructive politic[al] or reli­
gious doctrines, including . . . Islam.” Ibid. When asked
about these videos, the White House Deputy Press Secre­
tary connected them to the Proclamation, responding that
the “President has been talking about these security is­
sues for years now, from the campaign trail to the White
House” and “has addressed these issues with the travel
order that he issued earlier this year and the companion
proclamation.” Ibid.
2
As the majority correctly notes, “the issue before us is
not whether to denounce” these offensive statements.
Ante, at 29. Rather, the dispositive and narrow question
here is whether a reasonable observer, presented with all
“openly available data,” the text and “historical context” of
the Proclamation, and the “specific sequence of events”
leading to it, would conclude that the primary purpose of
the Proclamation is to disfavor Islam and its adherents by
excluding them from the country. See McCreary, 545
U. S., at 862–863. The answer is unquestionably yes.
Taking all the relevant evidence together, a reasonable
observer would conclude that the Proclamation was driven
primarily by anti-Muslim animus, rather than by the
——————
2 The content of these videos is highly inflammatory, and their titles
are arguably misleading. For instance, the person depicted in the video
entitled “Muslim migrant beats up Dutch boy on crutches!” was report­
edly not a “migrant,” and his religion is not publicly known. See Brief
for Plaintiffs in International Refugee Assistance Project v. Trump as
Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflam­
matory Anti-Muslim Videos, and Britain’s Leader Condemns Them,
N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys are
Dutch”), https: // www.nytimes.com / 2017 / 11 / 29 / us / politics / trump­
anti-muslim-videos-jayda-fransen.html (all Internet materials as last
visited June 25, 2018).
Cite as: 585 U. S. ____ (2018) 11
SOTOMAYOR, J., dissenting
Government’s asserted national-security justifications.
Even before being sworn into office, then-candidate Trump
stated that “Islam hates us,” App. 399, warned that
“[w]e’re having problems with the Muslims, and we’re
having problems with Muslims coming into the country,”
id., at 121, promised to enact a “total and complete shut­
down of Muslims entering the United States,” id., at 119,
and instructed one of his advisers to find a “lega[l ]” way to
enact a Muslim ban, id., at 125.3 The President continued
to make similar statements well after his inauguration, as
detailed above, see supra, at 6–10.
Moreover, despite several opportunities to do so, Presi­
dent Trump has never disavowed any of his prior state­
ments about Islam.4 Instead, he has continued to make
——————
3 The Government urges us to disregard the President’s campaign
statements. Brief for Petitioners 66–67. But nothing in our precedent
supports that blinkered approach. To the contrary, courts must con­
sider “the historical background of the decision under challenge, the
specific series of events leading to the enactment or official policy in
question, and the legislative or administrative history.” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion
of KENNEDY, J.). Moreover, President Trump and his advisers have
repeatedly acknowledged that the Proclamation and its predecessors
are an outgrowth of the President’s campaign statements. For exam­
ple, just last November, the Deputy White House Press Secretary
reminded the media that the Proclamation addresses “issues” the
President has been talking about “for years,” including on “the cam­
paign trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018). In any case, as
the Fourth Circuit correctly recognized, even without relying on any of
the President’s campaign statements, a reasonable observer would
conclude that the Proclamation was enacted for the impermissible
purpose of disfavoring Muslims. Id., at 266, 268.
4 At oral argument, the Solicitor General asserted that President
Trump “made crystal-clear on September 25 that he had no intention of
imposing the Muslim ban” and “has praised Islam as one of the great
countries [sic] of the world.” Tr. of Oral Arg. 81. Because the record
contained no evidence of any such statement made on September 25th,
however, the Solicitor General clarified after oral argument that he
actually intended to refer to President Trump’s statement during a
12 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
remarks that a reasonable observer would view as an
unrelenting attack on the Muslim religion and its follow­
ers. Given President Trump’s failure to correct the rea­
sonable perception of his apparent hostility toward the
Islamic faith, it is unsurprising that the President’s law­
yers have, at every step in the lower courts, failed in their
attempts to launder the Proclamation of its discriminatory
taint. See United States v. Fordice, 505 U. S. 717, 746–
747 (1992) (“[G]iven an initially tainted policy, it is emi­
nently reasonable to make the [Government] bear the risk
of nonpersuasion with respect to intent at some future
time, both because the [Government] has created the
dispute through its own prior unlawful conduct, and be­
cause discriminatory intent does tend to persist through
time” (citation omitted)). Notably, the Court recently
found less pervasive official expressions of hostility and
the failure to disavow them to be constitutionally signifi­
cant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18)
(“The official expressions of hostility to religion in some of
the commissioners’ comments—comments that were not
disavowed at the Commission or by the State at any point
in the proceedings that led to the affirmance of the order—
——————
television interview on January 25, 2017. Letter from N. Francisco,
Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); Reply
Brief 28, n. 8. During that interview, the President was asked whether
EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim
ban.” See Transcript: ABC News anchor David Muir interviews Presi­
dent Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/
transcript-abc-news-anchor-david-muir-interviews-president / story ? id =
45047602. But that lone assertion hardly qualifies as a disavowal of
the President’s comments about Islam—some of which were spoken
after January 25, 2017. Moreover, it strains credulity to say that
President Trump’s January 25th statement makes “crystal-clear” that
he never intended to impose a Muslim ban given that, until May 2017,
the President’s website displayed the statement regarding his cam­
paign promise to ban Muslims from entering the country.
Cite as: 585 U. S. ____ (2018) 13
SOTOMAYOR, J., dissenting
were inconsistent with what the Free Exercise Clause
requires”). It should find the same here.
Ultimately, what began as a policy explicitly “calling for
a total and complete shutdown of Muslims entering the
United States” has since morphed into a “Proclamation”
putatively based on national-security concerns. But this
new window dressing cannot conceal an unassailable fact:
the words of the President and his advisers create the
strong perception that the Proclamation is contaminated
by impermissible discriminatory animus against Islam
and its followers.
II
Rather than defend the President’s problematic state­
ments, the Government urges this Court to set them aside
and defer to the President on issues related to immigra­
tion and national security. The majority accepts that
invitation and incorrectly applies a watered-down legal
standard in an effort to short circuit plaintiffs’ Establish­
ment Clause claim.
The majority begins its constitutional analysis by noting
that this Court, at times, “has engaged in a circumscribed
judicial inquiry when the denial of a visa allegedly bur­
dens the constitutional rights of a U. S. citizen.” Ante, at
30 (citing Kleindienst v. Mandel, 408 U. S. 753 (1972)). As
the majority notes, Mandel held that when the Executive
Branch provides “a facially legitimate and bona fide rea­
son” for denying a visa, “courts will neither look behind
the exercise of that discretion, nor test it by balancing its
justification.” Id., at 770. In his controlling concurrence
in Kerry v. Din, 576 U. S. ___ (2015), JUSTICE KENNEDY
applied Mandel’s holding and elaborated that courts can
“ ‘look behind’ the Government’s exclusion of ” a foreign
national if there is “an affirmative showing of bad faith on
the part of the consular officer who denied [the] visa.”
Din, 576 U. S., at ___ (opinion concurring in judgment)
14 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
(slip op., at 5). The extent to which Mandel and Din apply
at all to this case is unsettled, and there is good reason to
think they do not.5 Indeed, even the Government agreed
at oral argument that where the Court confronts a situa­
tion involving “all kinds of denigrating comments about” a
particular religion and a subsequent policy that is de­
signed with the purpose of disfavoring that religion but
that “dot[s] all the i’s and . . . cross[es] all the t’s,” Mandel
would not “pu[t] an end to judicial review of that set of
facts.” Tr. of Oral Arg. 16.
In light of the Government’s suggestion “that it may be
appropriate here for the inquiry to extend beyond the
facial neutrality of the order,” the majority rightly declines
——————
5 Mandel and Din are readily distinguishable from this case for a
number of reasons. First, Mandel and Din each involved a constitu­
tional challenge to an Executive Branch decision to exclude a single
foreign national under a specific statutory ground of inadmissibility.
Mandel, 408 U. S., at 767; Din, 576 U. S., at ___ (slip op., at 1). Here,
by contrast, President Trump is not exercising his discretionary author­
ity to determine the admission or exclusion of a particular foreign
national. He promulgated an executive order affecting millions of
individuals on a categorical basis. Second, Mandel and Din did not
purport to establish the framework for adjudicating cases (like this one)
involving claims that the Executive Branch violated the Establishment
Clause by acting pursuant to an unconstitutional purpose. Applying
Mandel’s narrow standard of review to such a claim would run contrary
to this Court’s repeated admonition that “[f ]acial neutrality is not
determinative” in the Establishment Clause context. Lukumi, 508
U. S., at 534. Likewise, the majority’s passing invocation of Fiallo v.
Bell, 430 U. S. 787 (1977), is misplaced. Fiallo, unlike this case, ad­
dressed a constitutional challenge to a statute enacted by Congress, not
an order of the President. Id., at 791. Fiallo’s application of Mandel
says little about whether Mandel’s narrow standard of review applies to
the unilateral executive proclamation promulgated under the circum­
stances of this case. Finally, even assuming that Mandel and Din
apply here, they would not preclude us from looking behind the face of
the Proclamation because plaintiffs have made “an affirmative showing
of bad faith,” Din, 576 U. S., at ___ (slip op., at 5), by the President who,
among other things, instructed his subordinates to find a “lega[l]” way
to enact a Muslim ban, App. 125; see supra, at 4–10.
Cite as: 585 U. S. ____ (2018) 15
SOTOMAYOR, J., dissenting
to apply Mandel’s “narrow standard of review” and “as­
sume[s] that we may look behind the face of the Proclama­
tion.” Ante, at 31–32. In doing so, however, the Court,
without explanation or precedential support, limits its
review of the Proclamation to rational-basis scrutiny.
Ibid. That approach is perplexing, given that in other
Establishment Clause cases, including those involving
claims of religious animus or discrimination, this Court
has applied a more stringent standard of review. See, e.g.,
McCreary, 545 U. S., at 860–863; Larson, 456 U. S., at
246; Presbyterian Church in U. S. v. Mary Elizabeth Blue
Hull Memorial Presbyterian Church, 393 U. S. 440, 449–
452 (1969); see also Colorado Christian Univ. v. Weaver,
534 F. 3d 1245, 1266 (CA10 2008) (McConnell, J.) (noting
that, under Supreme Court precedent, laws “involving
discrimination on the basis of religion, including interde­
nominational discrimination, are subject to heightened
scrutiny whether they arise under the Free Exercise
Clause, the Establishment Clause, or the Equal Protection
Clause” (citations omitted)).6 As explained above, the
——————
6 The majority chides as “problematic” the importation of Establish­
ment Clause jurisprudence “in the national security and foreign affairs
context.” Ante, at 32–33, n. 5. As the majority sees it, this Court’s
Establishment Clause precedents do not apply to cases involving
“immigration policies, diplomatic sanctions, and military actions.”
Ante, at 32, n. 5. But just because the Court has not confronted the
precise situation at hand does not render these cases (or the principles
they announced) inapplicable. Moreover, the majority’s complaint
regarding the lack of direct authority is a puzzling charge, given that
the majority itself fails to cite any “authority for its proposition” that a
more probing review is inappropriate in a case like this one, where
United States citizens allege that the Executive has violated the
Establishment Clause by issuing a sweeping executive order motivated
by animus. Ante, at 33 n. 5; see supra, at 14, and n. 5. In any event,
even if there is no prior case directly on point, it is clear from our
precedent that “[w]hatever power the United States Constitution
envisions for the Executive” in the context of national security and
foreign affairs, “it most assuredly envisions a role for all three branches
16 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
Proclamation is plainly unconstitutional under that
heightened standard. See supra, at 10–13.
But even under rational-basis review, the Proclamation
must fall. That is so because the Proclamation is “ ‘di­
vorced from any factual context from which we could
discern a relationship to legitimate state interests,’ and
‘its sheer breadth [is] so discontinuous with the reasons
offered for it’ ” that the policy is “ ‘inexplicable by anything
but animus.’ ” Ante, at 33 (quoting Romer v. Evans, 517
U. S. 620, 632, 635 (1996)); see also Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 448 (1985) (recognizing
that classifications predicated on discriminatory animus
can never be legitimate because the Government has no
legitimate interest in exploiting “mere negative attitudes,
or fear” toward a disfavored group). The President’s
statements, which the majority utterly fails to address in
its legal analysis, strongly support the conclusion that the
Proclamation was issued to express hostility toward Mus­
lims and exclude them from the country. Given the over­
whelming record evidence of anti-Muslim animus, it sim­
ply cannot be said that the Proclamation has a legitimate
basis. IRAP II, 883 F. 3d, at 352 (Harris, J., concurring)
(explaining that the Proclamation contravenes the bedrock
principle “that the government may not act on the basis of
——————
when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U. S.
507, 536 (2004) (plurality opinion). This Court’s Establishment Clause
precedents require that, if a reasonable observer would understand an
executive action to be driven by discriminatory animus, the action be
invalidated. See McCreary, 545 U. S., at 860. That reasonable-
observer inquiry includes consideration of the Government’s asserted
justifications for its actions. The Government’s invocation of a national-
security justification, however, does not mean that the Court should
close its eyes to other relevant information. Deference is different from
unquestioning acceptance. Thus, what is “far more problematic” in this
case is the majority’s apparent willingness to throw the Establishment
Clause out the window and forgo any meaningful constitutional review
at the mere mention of a national-security concern. Ante, at 32, n. 5.
Cite as: 585 U. S. ____ (2018) 17
SOTOMAYOR, J., dissenting
animus toward a disfavored religious minority” (emphasis
in original)).
The majority insists that the Proclamation furthers two
interrelated national-security interests: “preventing entry
of nationals who cannot be adequately vetted and inducing
other nations to improve their practices.” Ante, at 34. But
the Court offers insufficient support for its view “that the
entry suspension has a legitimate grounding in [those]
national security concerns, quite apart from any religious
hostility.” Ibid.; see also ante, at 33–38, and n. 7. In­
deed, even a cursory review of the Government’s asserted
national-security rationale reveals that the Proclamation is
nothing more than a “ ‘religious gerrymander.’ ” Lukumi,
508 U. S., at 535.
The majority first emphasizes that the Proclamation
“says nothing about religion.” Ante, at 34. Even so, the
Proclamation, just like its predecessors, overwhelmingly
targets Muslim-majority nations. Given the record here,
including all the President’s statements linking the Proc­
lamation to his apparent hostility toward Muslims, it is of
no moment that the Proclamation also includes minor
restrictions on two non-Muslim majority countries, North
Korea and Venezuela, or that the Government has re­
moved a few Muslim-majority countries from the list of
covered countries since EO–1 was issued. Consideration
of the entire record supports the conclusion that the inclu­
sion of North Korea and Venezuela, and the removal of
other countries, simply reflect subtle efforts to start “talk­
ing territory instead of Muslim,” App. 123, precisely so the
Executive Branch could evade criticism or legal conse­
quences for the Proclamation’s otherwise clear targeting of
Muslims. The Proclamation’s effect on North Korea and
Venezuela, for example, is insubstantial, if not entirely
symbolic. A prior sanctions order already restricts entry
of North Korean nationals, see Exec. Order No. 13810, 82
Fed. Reg. 44705 (2017), and the Proclamation targets only
18 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
a handful of Venezuelan government officials and their
immediate family members, 82 Fed. Reg. 45166. As such,
the President’s inclusion of North Korea and Venezuela
does little to mitigate the anti-Muslim animus that per­
meates the Proclamation.
The majority next contends that the Proclamation “re­
flects the results of a worldwide review process under-
taken by multiple Cabinet officials.” Ante, at 34. At the out­
set, there is some evidence that at least one of the
individuals involved in that process may have exhibited
bias against Muslims. As noted by one group of amici, the
Trump administration appointed Frank Wuco to help
enforce the President’s travel bans and lead the multi-
agency review process. See Brief for Plaintiffs in Interna­
tional Refugee Assistance Project v. Trump as Amici Cu­
riae 13–14, and n. 10. According to amici, Wuco has
purportedly made several suspect public statements about
Islam: He has “publicly declared that it was a ‘great idea’
to ‘stop the visa application process into this country from
Muslim nations in a blanket type of policy,’ ” “that Muslim
populations ‘living under other-than-Muslim rule’ will
‘necessarily’ turn to violence, that Islam prescribes ‘vio­
lence and warfare against unbelievers,’ and that Muslims
‘by-and-large . . . resist assimilation.’ ” Id., at 14.
But, even setting aside those comments, the worldwide
review does little to break the clear connection between
the Proclamation and the President’s anti-Muslim state­
ments. For “[n]o matter how many officials affix their
names to it, the Proclamation rests on a rotten founda­
tion.” Brief for Constitutional Law Scholars as Amici
Curiae 7 (filed Apr. 2, 2018); see supra, at 4–10. The
President campaigned on a promise to implement a “total
and complete shutdown of Muslims” entering the country,
translated that campaign promise into a concrete policy,
and made several statements linking that policy (in its
various forms) to anti-Muslim animus.
Cite as: 585 U. S. ____ (2018) 19
SOTOMAYOR, J., dissenting
Ignoring all this, the majority empowers the President
to hide behind an administrative review process that the
Government refuses to disclose to the public. See IRAP II,
883 F. 3d, at 268 (“[T]he Government chose not to make
the review publicly available” even in redacted form);
IRAP v. Trump, No. 17–2231 (CA4), Doc. 126 (Letter from
S. Swingle, Counsel for Defendants-Appellants, to P.
Connor, Clerk of the United States Court of Appeals for
the Fourth Circuit (Nov. 24, 2017)) (resisting Fourth
Circuit’s request that the Government supplement the
record with the reports referenced in the Proclamation).
Furthermore, evidence of which we can take judicial notice
indicates that the multiagency review process could not
have been very thorough. Ongoing litigation under the
Freedom of Information Act shows that the September
2017 report the Government produced after its review
process was a mere 17 pages. See Brennan Center for
Justice v. United States Dept. of State, No. 17–cv–7520
(SDNY), Doc. No. 31–1, pp. 2–3. That the Government’s
analysis of the vetting practices of hundreds of countries
boiled down to such a short document raises serious ques­
tions about the legitimacy of the President’s proclaimed
national-security rationale.
Beyond that, Congress has already addressed the
national-security concerns supposedly undergirding the
Proclamation through an “extensive and complex” frame­
work governing “immigration and alien status.” Arizona
v. United States, 567 U. S. 387, 395 (2012).7 The Immigra­
——————
7 Itis important to note, particularly given the nature of this case,
that many consider “using the term ‘alien’ to refer to other human
beings” to be “offensive and demeaning.” Flores v. United States
Citizenship & Immigration Servs., 718 F. 3d 548, 551–552, n. 1 (CA6
2013). I use the term here only where necessary “to be consistent with
the statutory language” that Congress has chosen and “to avoid any
confusion in replacing a legal term of art with a more appropriate
term.” Ibid.20 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
tion and Nationality Act sets forth, in painstaking detail, a
reticulated scheme regulating the admission of individuals
to the United States. Generally, admission to the United
States requires a valid visa or other travel document. 8
U. S. C. §§1181, 1182(a)(7)(A)(i)(I), 1182(a)(7)(B)(i)(II). To
obtain a visa, an applicant must produce “certified
cop[ies]” of documents proving her identity, background,
and criminal history. §§1202(b), 1202(d). An applicant
also must undergo an in-person interview with a State
Department consular officer. §§1201(a)(1), 1202(h)(1),
22 CFR §§42.62(a)–(b) (2017); see also 8 U. S. C.
§§1202(h)(2)(D), 1202(h)(2)(F) (requiring in-person inter­
view if the individual “is a national of a country officially
designated by the Secretary of State as a state sponsor of
terrorism” or is “a member of a group or section that . . .
poses a security threat to the United States”). “Any alien
who . . . has engaged in a terrorist activity,” “incited ter­
rorist activity,” or been a representative, member, or
endorser of a terrorist organization, or who “is likely to
engage after entry in any terrorist activity,”
§1182(a)(3)(B), or who has committed one or more of the
many crimes enumerated in the statute is inadmissible
and therefore ineligible to receive a visa. See
§1182(a)(2)(A) (crime of moral turpitude or drug offense);
§1182(a)(2)(C) (drug trafficking or benefiting from a rela­
tive who recently trafficked drugs); §1182(a)(2)(D) (prosti­
tution or “unlawful commercialized vice”); §1182(a)(2)(H)
(human trafficking); §1182(a)(3) (“Security and related
grounds”).
In addition to vetting rigorously any individuals seeking
admission to the United States, the Government also
rigorously vets the information-sharing and identity-
management systems of other countries, as evidenced by
the Visa Waiver Program, which permits certain nationals
from a select group of countries to skip the ordinary visa-
application process. See §1187. To determine which
Cite as: 585 U. S. ____ (2018) 21
SOTOMAYOR, J., dissenting
countries are eligible for the Visa Waiver Program, the
Government considers whether they can satisfy numerous
criteria—e.g., using electronic, fraud-resistant passports,
§1187(a)(3)(B), 24-hour reporting of lost or stolen pass­
ports, §1187(c)(2)(D), and not providing a safe haven for
terrorists, §1187(a)(12)(D)(iii). The Secretary of Homeland
Security, in consultation with the Secretary of State, also
must determine that a country’s inclusion in the program
will not compromise “the law enforcement and security
interests of the United States.” §1187(c)(2)(C). Eligibility
for the program is reassessed on an annual basis. See
§1187(a)(12)(D)(iii), 1187(c)(12)(A). As a result of a recent
review, for example, the Executive decided in 2016 to
remove from the program dual nationals of Iraq, Syria,
Iran, and Sudan. See Brief for Former National Security
Officials as Amici Curiae 27.
Put simply, Congress has already erected a statutory
scheme that fulfills the putative national-security inter­
ests the Government now puts forth to justify the Procla­
mation. Tellingly, the Government remains wholly unable
to articulate any credible national-security interest that
would go unaddressed by the current statutory scheme
absent the Proclamation. The Government also offers no
evidence that this current vetting scheme, which involves
a highly searching consideration of individuals required to
obtain visas for entry into the United States and a highly
searching consideration of which countries are eligible for
inclusion in the Visa Waiver Program, is inadequate to
achieve the Proclamation’s proclaimed objectives of “pre­
venting entry of nationals who cannot be adequately
vetted and inducing other nations to improve their [vet­
ting and information-sharing] practices.” Ante, at 34.
For many of these reasons, several former national-
security officials from both political parties—including
former Secretary of State Madeleine Albright, former
State Department Legal Adviser John Bellinger III, for­
22 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
mer Central Intelligence Agency Director John Brennan,
and former Director of National Intelligence James Clap-
per—have advised that the Proclamation and its predeces­
sor orders “do not advance the national-security or foreign
policy interests of the United States, and in fact do serious
harm to those interests.” Brief for Former National Secu­
rity Officials as Amici Curiae 15 (boldface deleted).
Moreover, the Proclamation purports to mitigate
national-security risks by excluding nationals of countries
that provide insufficient information to vet their nationals.
82 Fed. Reg. 45164. Yet, as plaintiffs explain, the Procla­
mation broadly denies immigrant visas to all nationals of
those countries, including those whose admission would
likely not implicate these information deficiencies (e.g.,
infants, or nationals of countries included in the Procla­
mation who are long-term residents of and traveling from
a country not covered by the Proclamation). See Brief for
Respondents 72. In addition, the Proclamation permits
certain nationals from the countries named in the Procla­
mation to obtain nonimmigrant visas, which undermines
the Government’s assertion that it does not already have
the capacity and sufficient information to vet these indi­
viduals adequately. See 82 Fed. Reg. 45165–45169.
Equally unavailing is the majority’s reliance on the
Proclamation’s waiver program. Ante, at 37, and n. 7. As
several amici thoroughly explain, there is reason to sus­
pect that the Proclamation’s waiver program is nothing
more than a sham. See Brief for Pars Equality Center
et al. as Amici Curiae 11, 13–28 (explaining that “waivers
under the Proclamation are vanishingly rare” and report­
ing numerous stories of deserving applicants denied waiv­
ers). The remote possibility of obtaining a waiver pursu­
ant to an ad hoc, discretionary, and seemingly arbitrary
process scarcely demonstrates that the Proclamation is
rooted in a genuine concern for national security. See
ante, at 3–8 (BREYER, J., dissenting) (outlining evidence
Cite as: 585 U. S. ____ (2018) 23
SOTOMAYOR, J., dissenting
suggesting “that the Government is not applying the
Proclamation as written,” that “waivers are not being
processed in an ordinary way,” and that consular and
other officials “do not, in fact, have discretion to grant
waivers”).
In sum, none of the features of the Proclamation high­
lighted by the majority supports the Government’s claim
that the Proclamation is genuinely and primarily rooted in
a legitimate national-security interest. What the unrebut­
ted evidence actually shows is that a reasonable observer
would conclude, quite easily, that the primary purpose and
function of the Proclamation is to disfavor Islam by ban­
ning Muslims from entering our country.
III
As the foregoing analysis makes clear, plaintiffs are
likely to succeed on the merits of their Establishment
Clause claim. To obtain a preliminary injunction, how-
ever, plaintiffs must also show that they are “likely to suffer
irreparable harm in the absence of preliminary relief,”
that “the balance of equities tips in [their] favor,” and that
“an injunction is in the public interest.” Winter v. Natural
Resources Defense Council, Inc., 555 U. S. 7, 20 (2008).
Plaintiffs readily clear those remaining hurdles.
First, plaintiffs have shown a likelihood of irreparable
harm in the absence of an injunction. As the District
Court found, plaintiffs have adduced substantial evidence
showing that the Proclamation will result in “a multitude
of harms that are not compensable with monetary dam­
ages and that are irreparable—among them, prolonged
separation from family members, constraints to recruiting
and retaining students and faculty members to foster
diversity and quality within the University community,
and the diminished membership of the [Muslim] Associa­
tion.” 265 F. Supp. 3d 1140, 1159 (Haw. 2017).
Second, plaintiffs have demonstrated that the balance of
24 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
the equities tips in their favor. Against plaintiffs’ concrete
allegations of serious harm, the Government advances
only nebulous national-security concerns. Although na­
tional security is unquestionably an issue of paramount
public importance, it is not “a talisman” that the Govern­
ment can use “to ward off inconvenient claims—a ‘label’
used to ‘cover a multitude of sins.’ ” Ziglar v. Abbasi, 582
U. S. ___, ___ (2017) (slip op., at 20). That is especially
true here, because, as noted, the Government’s other
statutory tools, including the existing rigorous individual­
ized vetting process, already address the Proclamation’s
purported national-security concerns. See supra, at 19–
22.
Finally, plaintiffs and their amici have convincingly
established that “an injunction is in the public interest.”
Winter, 555 U. S., at 20. As explained by the scores of
amici who have filed briefs in support of plaintiffs, the
Proclamation has deleterious effects on our higher educa­
tion system;8 national security;9 healthcare;10 artistic
culture;11 and the Nation’s technology industry and overall
economy.12 Accordingly, the Court of Appeals correctly
affirmed, in part, the District Court’s preliminary
injunction.13
——————
8 See Brief for American Council on Education et al. as Amici Curiae;
Brief for Colleges and Universities as Amici Curiae; Brief for New York
University as Amicus Curiae.
9 See Brief for Retired Generals and Admirals of the U. S. Armed
Forces as Amici Curiae; Brief for Former National Security Officials as
Amici Curiae.
10 See Brief for Association of American Medical Colleges as Amicus
Curiae.
11 See Brief for Association of Art Museum Directors et al. as Amici
Curiae.
12 See Brief for U. S. Companies as Amici Curiae; Brief for Massachu­
setts Technology Leadership Council, Inc., as Amicus Curiae.
13 Because the majority concludes that plaintiffs have failed to show a
likelihood of success on the merits, it takes no position on “the propriety
Cite as: 585 U. S. ____ (2018) 25
SOTOMAYOR, J., dissenting
IV
The First Amendment stands as a bulwark against
official religious prejudice and embodies our Nation’s deep
commitment to religious plurality and tolerance. That
constitutional promise is why, “[f ]or centuries now, people
have come to this country from every corner of the world
to share in the blessing of religious freedom.” Town of
Greece v. Galloway, 572 U. S., at ___ (KAGAN, J., dissent­
ing) (slip op., at 1). Instead of vindicating those principles,
today’s decision tosses them aside. In holding that the
First Amendment gives way to an executive policy that a
reasonable observer would view as motivated by animus
against Muslims, the majority opinion upends this Court’s
precedent, repeats tragic mistakes of the past, and denies
countless individuals the fundamental right of religious
liberty.
Just weeks ago, the Court rendered its decision in Mas­
terpiece Cakeshop, 584 U. S. ___, which applied the bed­
rock principles of religious neutrality and tolerance in
considering a First Amendment challenge to government
action. See id., at ___ (slip op., at 17) (“The Constitution
‘commits government itself to religious tolerance, and
upon even slight suspicion that proposals for state inter­
vention stem from animosity to religion or distrust of its
practices, all officials must pause to remember their own
high duty to the Constitution and to the rights it secures’ ”
(quoting Lukumi, 508 U. S., at 547)); Masterpiece, 584
——————
of the nationwide scope of the injunction issued by the District Court.”
Ante, at 39. The District Court did not abuse its discretion by granting
nationwide relief. Given the nature of the Establishment Clause
violation and the unique circumstances of this case, the imposition of a
nationwide injunction was “ ‘necessary to provide complete relief to the
plaintiffs.’ ” Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 765
(1994); see Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (“[T]he
scope of injunctive relief is dictated by the extent of the violation
established, not by the geographical extent of the plaintiff class”).
26 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
U. S., at ___ (KAGAN, J., concurring) (slip op., at 1)
(“[S]tate actors cannot show hostility to religious views;
rather, they must give those views ‘neutral and respectful
consideration’ ”). Those principles should apply equally
here. In both instances, the question is whether a gov­
ernment actor exhibited tolerance and neutrality in reach­
ing a decision that affects individuals’ fundamental reli­
gious freedom. But unlike in Masterpiece, where a state
civil rights commission was found to have acted without
“the neutrality that the Free Exercise Clause requires,”
id., at ___ (slip op., at 17), the government actors in this
case will not be held accountable for breaching the First
Amendment’s guarantee of religious neutrality and toler­
ance. Unlike in Masterpiece, where the majority consid­
ered the state commissioners’ statements about religion to
be persuasive evidence of unconstitutional government
action, id., at ___–___ (slip op., at 12–14), the majority
here completely sets aside the President’s charged state­
ments about Muslims as irrelevant. That holding erodes
the foundational principles of religious tolerance that the
Court elsewhere has so emphatically protected, and it tells
members of minority religions in our country “ ‘that they
are outsiders, not full members of the political commu­
nity.’ ” Santa Fe, 530 U. S., at 309.
Today’s holding is all the more troubling given the stark
parallels between the reasoning of this case and that of
Korematsu v. United States, 323 U. S. 214 (1944). See
Brief for Japanese American Citizens League as Amicus
Curiae. In Korematsu, the Court gave “a pass [to] an
odious, gravely injurious racial classification” authorized
by an executive order. Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 275 (1995) (GINSBURG, J., dissenting).
As here, the Government invoked an ill-defined national-
security threat to justify an exclusionary policy of sweep­
ing proportion. See Brief for Japanese American Citizens
League as Amicus Curiae 12–14. As here, the exclusion
Cite as: 585 U. S. ____ (2018) 27
SOTOMAYOR, J., dissenting
order was rooted in dangerous stereotypes about, inter
alia, a particular group’s supposed inability to assimilate
and desire to harm the United States. See Korematsu, 323
U. S., at 236–240 (Murphy, J., dissenting). As here, the
Government was unwilling to reveal its own intelligence
agencies’ views of the alleged security concerns to the very
citizens it purported to protect. Compare Korematsu v.
United States, 584 F. Supp. 1406, 1418–1419 (ND Cal.
1984) (discussing information the Government knowingly
omitted from report presented to the courts justifying the
executive order); Brief for Japanese American Citizens
League as Amicus Curiae 17–19, with IRAP II, 883 F. 3d,
at 268; Brief for Karen Korematsu et al. as Amici Curiae
35–36, and n. 5 (noting that the Government “has gone to
great lengths to shield [the Secretary of Homeland Securi­
ty’s] report from view”). And as here, there was strong
evidence that impermissible hostility and animus moti-
vated the Government’s policy.
Although a majority of the Court in Korematsu was
willing to uphold the Government’s actions based on a
barren invocation of national security, dissenting Justices
warned of that decision’s harm to our constitutional fabric.
Justice Murphy recognized that there is a need for great
deference to the Executive Branch in the context of na­
tional security, but cautioned that “it is essential that
there be definite limits to [the government’s] discretion,”
as “[i]ndividuals must not be left impoverished of their
constitutional rights on a plea of military necessity that
has neither substance nor support.” 323 U. S., at 234
(Murphy, J., dissenting). Justice Jackson lamented that
the Court’s decision upholding the Government’s policy
would prove to be “a far more subtle blow to liberty than
the promulgation of the order itself,” for although the
executive order was not likely to be long lasting, the
Court’s willingness to tolerate it would endure. Id., at
245–246.
28 TRUMP v. HAWAII
SOTOMAYOR, J., dissenting
In the intervening years since Korematsu, our Nation
has done much to leave its sordid legacy behind. See, e.g.,
Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq.
(setting forth remedies to individuals affected by the
executive order at issue in Korematsu); Non-Detention Act
of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment
or detention by the United States of any citizen absent an
Act of Congress). Today, the Court takes the important
step of finally overruling Korematsu, denouncing it as
“gravely wrong the day it was decided.” Ante, at 38 (citing
Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)).
This formal repudiation of a shameful precedent is laud­
able and long overdue. But it does not make the majority’s
decision here acceptable or right. By blindly accepting the
Government’s misguided invitation to sanction a discrimi­
natory policy motivated by animosity toward a disfavored
group, all in the name of a superficial claim of national
security, the Court redeploys the same dangerous logic
underlying Korematsu and merely replaces one “gravely
wrong” decision with another. Ante, at 38.
Our Constitution demands, and our country deserves, a
Judiciary willing to hold the coordinate branches to ac­
count when they defy our most sacred legal commitments.
Because the Court’s decision today has failed in that
respect, with profound regret, I dissent.