U.S. Supreme Court

Chemerinsky: The travel ban and the Supreme Court

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Erwin Chemerinsky

Erwin Chemerinsky

No case on the docket this year is likely to be more important than Trump v. Hawaii, which involves the legality of President Donald Trump’s travel ban. The case will be heard on the last day of arguments for the term, Wednesday, April 25.

Before the U.S. Supreme Court is the third effort by President Trump to prevent immigration from several designated countries. Virtually every federal court, trial and appellate, to consider any of these versions has found them to be invalid.

The initial travel ban was created by an executive order on Jan. 27, 2017. It barred all immigration from seven designated countries—Sudan, Syria, Iran, Libya, Somalia, Yemen, and Iraq—for a period of 90 days. It also suspended the refugee program for 120 days. It applied even to those who had the right to be in the United States because they had green cards and valid visas. There was an exception for those who were of minority religions in these majority-Muslim countries.

Many federal courts held that the executive order could not be applied to those who had the right to be in the United States. A federal district court in Washington state went further and issued a nationwide preliminary injunction, and the San Francisco-based 9th U.S. Circuit Court of Appeals affirmed, holding that the travel ban was impermissible discrimination based on religion. It concluded that was clear from the statements of the president and other White House officials that this was meant to be a “Muslim ban.”

The Trump administration did not seek review in the U.S. Supreme Court, but instead issued a second version of the travel ban via a new executive order. This time, all immigration was barred from six countries for a period of 90 days; Iraq was removed from the list. The refugee program was again suspended for 120 days. But this time the ban did not apply to those who had visas or green cards and there was no exception for those of minority religions.

Federal district courts in Maryland and Hawaii issued preliminary injunctions concluding that this version of the travel ban, too, was likely unconstitutional. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, in an unusual en banc ruling before there was a panel decision, upheld the preliminary injunction issued by the Maryland court, concluding that the executive order was based on religious animus. The 9th Circuit upheld the Hawaii federal district court decision, focusing primarily on a federal statute that bars discrimination in issuing visas based on national origin or country of residence and also on separation of powers considerations.

The Supreme Court granted review in both cases and scheduled oral arguments for Oct. 10, 2017. But by then, the 90-day and 120-day time periods had expired or were about to expire, so the court dismissed the cases as moot.

President Trump, by executive proclamation, then issued the travel ban now before the Supreme Court. It bans immigration from eight countries: Iran, Libya, Syria, Somalia, Yemen, Chad, North Korea, and Venezuela. It is of indefinite duration so this case will not become moot.

A federal district court in Hawaii issued an injunction and, in December 2017, the 9th Circuit affirmed. The appeals court focused on a federal statute adopted in 1965 that says: “No person shall receive any preference or priority or 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 travel ban is entirely about discriminating based on nationality and place of residence.

The 1965 law was meant to eliminate the old system where immigration was based on quotas from particular countries. It was this approach that kept many fleeing the Holocaust from being able to come to this country and condemned them to death in concentration camps. The statute also is based on the premise that it is wrong to presume a person to be more dangerous because of race or sex or religion or nationality or place of birth or place of residence.

In February 2017, the 4th Circuit again affirmed the district court’s preliminary injunction, once more focusing primarily on religious discrimination. This decision is not the case that will be argued April 25.


The Supreme Court granted certiorari on four questions:

    1. Whether the challenge to the president’s suspension of entry of aliens abroad is justiciable.

    2. Whether the proclamation—which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries who do not share adequate information with the United States or that present other risk factors—is a lawful exercise of the president’s authority to suspend entry of aliens abroad.

    3. Whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad.

    4. Whether the proclamation violates the establishment clause of the Constitution.

It is interesting that the court granted review in the last of these questions because it was not the basis of the 9th Circuit decision now being reviewed by the Supreme Court.

The core of the president’s argument is that the “Constitution and acts of Congress confer on the president broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation’s interest.” The president contends that the federal courts have no authority to review the president’s decisions to exclude aliens. The government disputes that the establishment clause applies here, but says even if it does, the “text, legislative history, and implementation [of the executive order] all confirm that its ‘official objective’ is religion-neutral.”

Hawaii, of course, has a very different perception of the president’s proclamation. Hawaii says this is discrimination based on national origin and country of residence in violation of federal law. Hawaii also claims that “the president’s order also violates the most fundamental protections enshrined in our Constitution. The establishment clause forbids the government from enacting policies that denigrate or exclude members of a particular faith.” Hawaii says the Trump proclamation is nothing but a thinly disguised Muslim ban. Hawaii says the Trump travel ban is particularly irrational because, as lower courts have observed, there is no link between the designated countries and any proven terrorist acts in the United States.


The underlying issues in Trump v. Hawaii are enormously important: Do the federal courts have authority to review presidential decisions barring immigration from specific countries? What is the president’s powers to do this? What, if any, justifications are required? May such presidential orders discriminate based on religion, and if not, how is it determined if there is religious discrimination? And if all of this is not enough to make the case significant, it also may reveal the justices’ views on presidential power and immigration that could be relevant to other issues pending in the lower courts, such as President Trump’s repeal of the Deferred Action for Childhood Arrivals program and the challenges to President Trump’s threatening to withhold federal funds from cities and states that do not cooperate with immigration officials.

A decision is expected by late June, essentially within two months of the oral argument.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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