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Trump v. Hawaii

  • Peter J. Spiro (a1)

In Trump v. Hawaii, the United States Supreme Court upheld admissions restrictions imposed by the Trump administration on nationals of certain countries for putative security reasons. In so doing, the Court's opinion reaffirmed judicial deference to the president on matters relating to immigration. Although the decision marked a Trump administration victory at the end of a protracted judicial clash, the lower courts are likely to continue operating as a check on aggressively restrictionist policies pursued by the administration on other fronts.

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1 Trump v. Hawaii, 138 S. Ct. 2392 (2018).

2 See Exec. Order 13769, 82 Fed. Reg. 8977, at § 3(c) (Jan. 27, 2017) (incorporating by reference those countries designated as countries of concern under Section 217(a)(12) of the Immigration and Nationality Act, 8 U.S.C. 1187). Under that section, nationals of Iraq, Iran, Sudan, and Syria were deemed ineligible for the visa waiver program, to which the Obama administration added by designation nationals of Libya, Somalia, and Yemen. See Alison Siskin, President Trump's Executive Order on Suspending Entry of Select Foreign Nationals: The Seven Countries, Cong. Res. Serv. Insight (Feb. 1, 2017), available at

3 8 U.S.C. § 1182(f).

4 Exec. Order 13769, at § 5.

5 Office of the Inspector General, Dept. of Homeland Security, DHS Implementation of Executive Order 13769, Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 18, 2018), available at

6 Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017); Washington v. Trump, 847 F. 3d 1151 (9th Cir. 2017).

7 Exec. Order 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017).

8 Id., § 3(a).

9 Id., § 3(b).

10 Id., § 3(c).

11 U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”).

12 IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc) (Establishment Clause grounds); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam) (statutory grounds). Because the order exempted permanent residents and existing visa holders, the due process arguments available to litigants challenging the first order were more difficult to sustain. Compare United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”) with Landon v. Plasencia, 459 U.S. 21 (1982) (finding returning permanent resident to enjoy due process rights after brief absence from the United States).

13 Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017) (per curiam).

14 Proclamation 9645 of Sept. 24, 2017, 82 Fed. Reg. 45161 (2017).

15 Id., § 1(h)(iii).

16 Id., § 3(c).

17 IRAP v. Trump, 857 F.3d 554 (4th Cir. 2018) (en banc) (Establishment Clause grounds); Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) (per curiam) (statutory grounds).

18 Trump v. Hawaii, 138 S. Ct. 2392 (2018).

19 878 F.3d at 695–97.

20 8 U.S.C. § 1152(a)(1)(A).

21 See Orgad, Liav & Ruthizer, Theodore, Race, Religion, and Nationality in Immigration Selection: 120 Years After the Chinese Exclusion Case, 26 Const. Comm. 237, 249–52 (2010) (summarizing measures and court decisions).

22 See, e.g., Dustin Volz, Trump Steps Up Attack on Judge, Court System Over Travel Ban, Reuters (Feb. 5, 2017), at; Kim Soffen & Darla Cameron, How Trump's Travel Ban Broke from the Normal Executive Order Process, Wash. Post (Feb. 9, 2017), at According to many reports, Trump himself gets most of his information from cable news in general and Fox News in particular. See, e.g., Ashley Parker & Robert Costa, “Everyone Tunes In”: Inside Trump's Obsession with Cable TV, Wash. Post (Apr. 23, 2017), at

23 See, e.g., Evan Perez, Pamela Brown & Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017), at (describing how first travel ban was adopted without the usual interagency vetting).

24 Cf. Jack Goldsmith, What Was Most Important in Today's Supreme Court Decision, Lawfare (June 26, 2017), at (responding to the partial stay of the second order, “it is important to appear neutral, and to appear to follow precedents, and to appear to pay presidents proper deference and respect”).

25 See, e.g., Martin, David A., Why Immigration's Plenary Power Doctrine Endures, 68 Okla. L. Rev. 29 (2015).

26 408 U.S. 753 (1972).

27 135 S. Ct. 2128 (2015).

28 See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952) (upholding a deportation measure against a substantive due process challenge where it is not “a fantasy or a pretense”); Fiallo v. Bell, 430 U.S. 787, 793–94 n. 5 (1977) (upholding an immigration classification discriminating on the basis of gender and legitimacy against an equal protection attack in the face of “exceptionally broad” congressional power, while acknowledging “limited judicial responsibility” in the area).

29 533 U.S. 678 (2001).

30 See Spiro, Peter J., Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339 (2001).

31 For instance, in Harisiades v. Shaughnessy, the Supreme Court upheld a statute providing for the deportation of former members of the Communist party, an exceedingly harsh measure as applied to longstanding permanent residents. “Judicially we must tolerate,” wrote Justice Jackson for the Court, “what we personally may regard as a legislative mistake.” 342 U.S. 580, 590 (1952). There is no similar tell in Hawaii v. Trump that the majority understands the travel restrictions to be counterproductive and ill-advised, even as they are constrained to uphold the action for reasons grounded in institutional authority. In his concurrence in the case—his last opinion before announcing his retirement from the Court—Justice Kennedy obliquely engaged in critical terms with the Trump administration's constitutional tendencies, arguing that even where government officials are not subject to judicial scrutiny, “[t]hat does not mean those officials are free to disregard the … rights [the Constitution] proclaims and protects” (p. 2424).

32 See, e.g., Jacinto v. INS, 208 F. 3d 725 (9th Cir. 2000) (reversing deportation on due process grounds where an immigration judge was found to have denied an alien a full and fair hearing).

33 See Dara Lind, Trump Just Lost His Best Chance to Kill DACA This Year, Vox (Aug. 31, 2018), at See also Dara Lind, Judge Blocks Trump's Efforts to End Temporary Protected Status for 300,000 Immigrants, Vox (Oct. 4, 2018), at

34 Korematsu v. United States, 323 U.S. 214 (1944).

35 See Trump v. Hawaii, 138 S. Ct. at 2448 (Sotomayor, J., dissenting) (“The Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”).

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