Trump v. Hawaii [SCOTUSbrief]
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Trump v. Hawaii [SCOTUSbrief]


The presidential order at the heart of Trump v. Hawaii is Proclamation 9645, which the president issued on September 24, 2017, to
replace the March 6 order, which was scheduled to expire. And Proclamation 9645 restricts travel to
the United States by nationals of eight countries. And the question is whether or not the president’s
order violates either the Constitution or federal law. This proclamation is a little bit different
from some of the ones that came before in a couple of respects. The first is just in terms of the duration. Under the March 6 order, the agencies that
regulate security and immigration were supposed to conduct an extensive process to look at
the vetting procedures that United States officials use to decide whether or not someone
can come to the United States. The September 24 order, Proclamation 9645,
in essence says we conducted that review, it was extensive, it was detailed, and our
vetting procedures are greatly improved but we found that they continue to be deficient, that we’re not getting enough information
from eight countries. Libya, Iran, Syria, Somalia, Yemen, and then
North Korea, Venezuela, and Chad. And so we are going to continue to restrict
travel to the United States from those countries. This proclamation is indefinite. The other way that this proclamation is different
from the earlier proclamations is which countries it affects. The March 6 proclamation affected six countries,
all of which were Muslim-majority countries. Five of those six countries are still on the
list of nations whose nationals have restricted travel, but it added three more, North Korea
and Venezuela, neither of which is a Muslim-majority country, and Chad, which has a Muslim population
that is majority, but just barely. The Trump administration’s argument is this
falls squarely within the president’s authority under the immigration laws. Congress has primary authority to regulate
immigration, but they’ve delegated some of that authority to the president precisely
because the president is able to act quickly to address threats to national security. I think that there is a sense among the Trump
Administration that, even though it’s been now 17 years since September 11, this is a
bit of an emergency situation. Certainly, the president’s remarks when he
first called for a ban on Muslims coming to the United States were in response to a terrorist
incident. And there’s a sense that there is a constant
threat, and that the agencies that are deciding whether or not to admit someone to the United
States need to make sure that they have the kind of information that they need to accurately
assess whether someone is a threat to the security of the United States. And the September 24 order reflects the conclusion
that, at least for these countries, we’re not yet getting the kind of information that
we need to be able to make that decision accurately with any confidence. I think that Hawaii’s best argument is the
idea that this is old wine in new bottles. That the Trump Administration may have tried
to dress this up as something that was not targeting Muslim-majority countries. You can look at the face of this proclamation
and sure, they’re not all necessarily Muslim countries, but if you look at the whole history
of the different executive orders then this is clearly something that’s intended to target
Muslims, as some of the president’s comments and tweets in the past have suggested. Whether or not there’s any precedent for looking
at the words of a candidate, or even the words of a president, to determine the outcome of
a case, is I think something that’s going to be debated. As a general rule, courts and particularly
the Supreme Court want to just look at the face of an order. They don’t want to try to get into the heads
of whoever drafted the order to figure out what may have actually been going on. They want to look at the text, and whether
that’s the Constitution, or a statute, or an executive order. What the challengers are saying is that that
may generally be the case, but when you’ve got this kind of really extreme animus, then
you need to go behind the words of the statute or the order to what the actual motivation
was. This is a case that really, I think in many
ways captures a lot of the debate that is going on in the United States right now, and
that we saw during the 2016 presidential elections. Whatever the Supreme Court decides in this
case isn’t going to resolve the debate, but it will say a lot about the president’s powers
to regulate immigration and national security.

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