Hawaii's case against Trump's travel ban, debunked

by Nolan Rappaport, The Hill, March 14, 2017

Hawaii has filed a lawsuit challenging President Donald Trump’s revised version of his Executive Order,  “Protecting the Nation From Foreign Terrorist Entry Into the United States,” on four main grounds:

1. Hawaii claims the Order violates the prohibition against nationality-based discrimination in the Immigration and Nationality Act (INA).

This argument is based on 8 U.S.C. § 1152(a)(1)(A) of the INA, which prohibits discrimination on the basis of nationality.  Hawaii claims that the EO violates this provision by prohibiting nationals of six countries from entry into the United States.

But this interpretation takes the section out of context.  It just applies to the per country levels for the annual allocation of immigrant visas to aliens coming to the United States to live here permanently.

In the section titled “Numerical limitations on individual foreign states,” it states that “Except as specifically provided in paragraph (2) [family-sponsored and employment-based immigrants] and in sections 1101(a)(27) [special immigrant], 1151(b)(2)(A)(i) [aliens not subject to direct numerical limitations], and 1153 [allocation of immigrant visas] … no person shall … be discriminated against in the issuance of an immigrant visa because of the person's … nationality.”

2. Hawaii claims the Order exceeds the president’s authority under 8 U.S.C. § 1182(f).

8 U.S.C. § 1182(f) gives the president broad authority to suspend the entry of aliens and classes of aliens.  The pertinent part reads as follows:

“(f) Suspension of entry or imposition of restrictions by President

“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 … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants….”

Hawaii claims that Congress has designated specific criteria for determining terrorism-related inadmissibility in 8 U.S.C. § 1182(a), and the president cannot ignore these provisions and set up new criteria that he prefers.

But President Trump is using his authority to suspend the entry of an alien or class of aliens.  This is not the same as excluding an alien under the statutory bars to admission in 8 U.S.C. § 1182(a).

According to the Congressional Research Service, neither the text of 8 U.S.C. § 1182(f) nor the case law to date suggests any firm legal limits on the president’s exercise of the authority it gives him.  The only limitation is that the president must have found that the entry of the aliens being suspended would be “detrimental to the interests of the United States.”

Hawaii cites cases that it claims prohibit congress from vesting the president with such unbounded authority, but they deal with authority delegated to the Attorney General, not to the president.

3. Hawaii claims the Order violates Due Process.

Hawaii relies on the Ninth Circuit Court of Appeals decision which affirmed a stay on enforcing the original EO because it does not provide due process.

That decision was based primarily on the initial EO’s failure to provide due process to lawful permanent residents returning from a trip abroad, and the revised EO has removed them from the travel ban.

Hawaii notes that the Circuit Court’s concern included aliens seeking admission who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.   

The Supreme Court has adopted a standard for balancing the constitutional rights of Americans to bring aliens into the United States against congress' plenary power to refuse to admit them, which 8 U.S.C. § 1182(f) delegated to the president.  The test is whether there is a "facially legitimate and bona fide" reason for the refusal, and the fact that the travel ban applies to five countries that the Obama administration designated as “countries of concern” more than satisfies that standard.  The sixth country, Syria, is on the State Sponsors of Terrorism list.

4. Hawaii claims the Order violates the Constitution’s protections against religious discrimination.

Hawaii claims that the EO violates the Constitution’s protections against religious discrimination, but Hawaii has to go beyond what the EO actually says to support this claim.

On page 40 of its memorandum, Hawaii says, “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”

But the “evidence of purpose beyond the face” of the EO consists primarily of statements President Trump made before he took the oath of office to become the president.

According to Eugene Kontorovich, a Northwestern University law professor, “there is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.”

Moreover, the claim that it is a Muslim ban is contradicted by Iraq’s removal from the list because arrangements have been made for the Iraqi government to provide the information needed for effective vetting of Iraqi nationals.

Hawaii’s four claims against the president’s travel ban are thus unfounded and the state is going to fail in its attempt to stop the travel ban.

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Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.