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{{short description|2018 legal challenge to U.S. President Trump's travel ban by several states}}{{Use mdy dates|date=May 2020}}

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Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018), was a landmark United States Supreme Court case involving Presidential Proclamation 9645 signed by President Donald Trump, which restricted travel into the United States by people from several nations, or by refugees without valid travel documents. Hawaii and several other states and groups challenged the Proclamation and two predecessor executive orders also issued by Trump on statutory and constitutional grounds. Citing a variety of statements by Trump and administration officials, they argued that the proclamation and its predecessor orders were motivated by anti-Muslim animus.WEB,weblink The Supreme Court Travel Ban Ruling: A Summary, Hilary, Hurd, Yishai, Schwartz, June 26, 2018, June 28, 2018, Lawfare, A U.S. district court issued a preliminary injunction preventing the ban from coming into effect, finding that plaintiffs were likely to succeed in their argument that the proclamation violated the Establishment Clause of the First Amendment to the United States Constitution and exceeded the president's powers under the Immigration and Nationality Act (INA). The U.S. Court of Appeals for the Ninth Circuit affirmed this injunction, ruling that the proclamation was likely a violation of INA; the court of appeals did not reach the constitutional issue. On June 26, 2018, the Supreme Court reversed the Court of Appeals in a 5–4 decision, ruling that plaintiffs did not have "likelihood of success on the merits" on either their INA or their Establishment Clause claims. The court vacated the injunction and remanded the case to lower courts for further proceedings. The decision, written by Chief Justice John Roberts, applied rational basis review and emphasized deference to the executive branch. In addressing the travel ban, the Court also repudiated the infamous decision Korematsu v. United States, {{ussc|323|214|1944}}, which had justified the president's powers to establish internment camps for Japanese Americans during World War II. In dissent, Justice Sonia Sotomayor wrote that the decision "redeploys the same dangerous logic underlying Korematsu and merely replaces one gravely wrong decision with another." Responding to her dissent, Roberts wrote: "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 Presidential authority."WEB, Trump v. Hawaii Is Korematsu All Over Again,weblink 2020-09-10, www.tuckerellis.com, en, Legal scholars differ as to whether this statement actually overturned Korematsu or was merely a "disapproving dictum" of it.

Background

Executive Orders 13769 and 13780

As part of his immigration policy, United States President Donald Trump had sought to limit foreigners from certain countries from traveling into the U.S. On January 27, 2017, he signed Executive Order 13769 (EO 13769), which banned entry to citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days regardless of their visa status, and suspended the United States Refugee Admissions Program (USRAP) for 120 days. Because the countries affected have large Muslim populations and Trump repeatedly called for banning Muslim immigration during his presidential campaign, EO 13769 was commonly known as the "Muslim ban", and was heavily criticized by many state legislatures and federal lawmakers. Several lawsuits were filed to challenge the order, and in Washington v. Trump, heard in the United States Court of Appeals for the Ninth Circuit, a restraining order was placed on enforcement of EO 13769 on February 3, 2017.On March 6, 2017, Trump signed Executive Order 13780 (EO 13780), replacing EO 13769 to acknowledge the Ninth Circuit's findings. It did not outright ban travel from citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen, but required significant additional scrutiny before they would be able to enter the U.S. and banned new visas for these countries for 90 days. It also suspended USRAP for 120 days.

Hawaii's challenge to EO 13780

Like EO 13769, EO 13780 was immediately criticized and legally challenged in several cases. Of note was a challenge from the State of Hawaii, which formed the basis of the Supreme Court case. Hawaii brought a civil action challenging the executive order on March 7, asking for declaratory judgment and an injunction halting the order.NEWS,weblink Hawaii plans to sue to block new Trump travel ban, The Washington Post, March 7, 2017, Matt, Zapotosky, NEWS,weblink Eric, Beech, State of Hawaii to challenge new Trump order in court – court document, March 8, 2017, Reuters, Reuters, Hawaii moved for leave to file an Amended Complaint pertaining to Executive Order 13780.WEB,weblink Documents in State of Hawaii et al v. Trump – A Challenge to President Trump's March 6, 2017 Travel Ban, WEB,weblink 1:17-cv-00050 Second Amended Complaint for Declaratory and Injunctive Relief, WEB,weblink 1:17-cv-00050 Motion for Leave To File Second Amended Complaint for Declaratory and Injunctive Relief, Doug Chin, Hawaii's Attorney General, publicly said: "This new executive order is nothing more than Muslim Ban 2.0. Under the pretense of national security, it still targets immigrants and refugees. It leaves the door open for even further restrictions."NEWS,weblink Hawaii Mounts Legal Challenge To President's Revised Travel Ban, Laura, Wamsley, March 8, 2017, NPR, March 9, 2017, Hawaii's legal challenge to the revised ban cited top White House advisor Stephen Miller as saying the revised travel ban was meant to achieve the same basic policy outcome as the original.NEWS,weblink March 8, 2017, Alexander, Burns, Vivian, Yee, The New York Times, Hawaii Sues to Block Trump Travel Ban; First Challenge to Order, The Amended Complaint listed eight specific causes of action pertaining to Executive Order 13780:

1. Violation of the First Amendment's Establishment Clause claiming the travel ban targets Muslims
2. Violation of the Fifth Amendment's Equal Protection clause
3. Violation of the Fifth Amendment's Due Process Clause (substantive due process)
4. Violation of the Fifth Amendment's Due Process Clause (procedural due process)
5. Violation of the Immigration and Nationality Act of 1952 {{UnitedStatesCode|8|1152}}(a)(1)(A) and {{UnitedStatesCode|8|1182}}(f) and {{UnitedStatesCode|8|1185}}(a)
6. Violations of the Religious Freedom Restoration Act {{UnitedStatesCode|42|2000bb}}-1(a)
7. Substantive violation of the Administrative Procedure Act through violations of the Constitution, Immigration and Nationality Act, and arbitrary and capricious action {{UnitedStatesCode|5|706}}(2)(A)–(C).
8. Procedural violation of the Administrative Procedure Act {{UnitedStatesCode|5|706}}(2)(D), {{UnitedStatesCode|5|551}}(1), and {{UnitedStatesCode|5|553}}

On March 15, 2017, Judge Derrick Watson of the United States District Court for the District of Hawaii issued a temporary restraining order preventing sections 2 and 6 of executive order 13780 from going into effect.NEWS, Levine, Dan, Rosenberg, Mica,weblink U.S. judge in Hawaii puts emergency halt on Trump's new travel ban, March 15, 2017, Reuters, Reuters, WEB, Nuckols, Ben, Johnson, Gene,weblink Trump travel ban put on hold again, The Boston Globe, March 15, 2017, WEB,weblink CV. NO. 17-00050 Order Granting Motion for Temporary Restraining Order,weblink" title="web.archive.org/web/20170317033303weblink">weblink March 17, 2017, United States District Court for the District of Hawai'i, March 15, 2017, In his order, Watson ruled that the State of Hawaii showed a strong likelihood of success on their Establishment Clause claim in asserting that Executive Order 13780 was in fact a "Muslim ban". Watson wrote: "When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government's national security motivations, the balance of equities and public interests justify granting the Plaintiffs. Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim."WEB,weblink Federal Judge Blocks Trump's Latest Travel Ban Nationwide, Alexander, Burns, March 15, 2017, The New York Times, Of the Order's neutrality to religion, he wrote that the government's position that courts may not look behind the exercise of executive discretion and must only review the order's text was rejected as legally incorrect,{{rp|31–32}} and that:}}In drawing its conclusion, the Court quoted the Ninth Circuit appeal ruling on the original Executive Order (13769): "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", and quoted previous rulings that "Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality" (Church of the Lukumi Babalu Aye v. City of Hialeah); "a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions" (Larson v. Valente); and that "circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose" (Village of Arlington Heights v. Metropolitan Housing). The opinion ended with a comment that "the Supreme Court has been even more emphatic: courts may not 'turn a blind eye to the context in which [a] policy arose{{'"}} (McCreary County v. ACLU of Kentucky held that a law becomes unconstitutional under the Establishment Clause if its "ostensible or predominant purpose" is to favor or disfavor any religion over any otheweblink pp. 10–11.).{{rp|32}} The Court also took into account numerous statements by the president and his team, before and after election, that directly said that he sought a legal means to achieve a total ban on Muslims entering the U.S.,{{rp|33–37}} and a "dearth" of substantive evidence in support of the stated security benefits.After Watson's ruling, a Department of Justice spokeswoman said the administration would continue to defend the executive order in the courts.NEWS,weblink NPR, March 15, 2017, Trump Travel Ban Blocked Nationwide By Federal Judges In Hawaii, Maryland, Richard, Gonzoles, Trump denounced the ruling as "an unprecedented judicial overreach" and indicated that the decision would be appealed, if necessary, to the Supreme Court, saying: "We're talking about the safety of our nation, the safety and security of our people. This ruling makes us look weak."WEB,weblink Judge blocks second travel order; Trump slams 'judicial overreach', NBC News, March 16, 2017, WEB,weblink Trump says federal judge's travel ban block is 'unprecedented overreach', Claire, Phipps, March 15, 2017, The Guardian, Five opinions were attached to the order denying en banc. Stephen Reinhardt and Marsha Berzon each wrote concurring opinions, while Alex Kozinski, Carlos Bea, and Jay Bybee each filed a dissenting opinion. Judge Kozinski of the Ninth Circuit Court of Appeals filed a late dissent on March 17, 2017, to the Ninth Circuit's opinion in Washington v. Trump, arguing against the State of Washington's Establishment Clause claims on grounds that Trump's words during the campaign were political speech protected by the First Amendment. The Ninth Circuit had declined to address that issue in reaching its ruling on Washington v. Trump and U.S. courts do not typically rule on issues that are not before them, but Kozinski argued it was appropriate for him to address the issue because Judge Watson had cited the Ninth Circuit opinion in reaching its Establishment Clause ruling.NEWS,weblink Richard, Hasen, Does the First Amendment Protect Trump's Travel Ban?, March 20, 2017, Slate, WEB,weblink March 17, 2017, No. 2:17-cv-00141 Amended Order, On March 29, Watson extended his order blocking the ban for a longer duration.NEWS, Hawaii Judge Extends Order Blocking Trump's Travel Ban,weblink March 29, 2017, Associated Press, Honolulu, The New York Times, The DOJ appealed this ruling.NEWS,weblink March 30, 2017, Trump travel ban: Administration appeals Hawaii judge's new ruling blocking ban, Fox News, On May 15, a panel of the Ninth Circuit heard arguments on whether to uphold the nationwide injunction.NEWS,weblink April 4, 2017, 9th Circuit Court sets a date for travel ban hearing, Maura, Dolan, The Los Angeles Times, NEWS, Ninth Circuit Hears Oral Argument on Travel Ban,weblink May 16, 2017, C-SPAN.org, May 15, 2017, Acting Solicitor General of the United States Jeffrey Wall and Hawaii's attorney, Neal Katyal, appeared before Circuit Judges Ronald M. Gould, Michael Daly Hawkins, and Richard Paez for an hour of oral argument in Seattle's William Kenzo Nakamura United States Courthouse.NEWS, Adam Liptak, 3 Judges Weigh Trump's Revised Travel Ban, but Keep Their Poker Faces,weblink May 16, 2017, The New York Times, May 16, 2017, A16, Adam Liptak, On June 12, a unanimous panel of the Ninth Circuit partially upheld Watson's injunction.NEWS, Zapotosky, Matt, Federal appeals court upholds freeze on Trump's travel ban,weblink June 12, 2017, The Washington Post, June 12, 2017, WEB, State of Hawaii, et al. v. Trump ('Travel Ban') 17-15589,weblink United States Courts for the Ninth Circuit, June 12, 2017, dead,weblink" title="web.archive.org/web/20170607220955weblink">weblink June 7, 2017, In its anonymous per curiam decision, the court found that Trump's order violated the relevant statute, and so must be enjoined. But the court also found that Watson should have avoided the constitutional question and should not have enjoined the purely internal government vetting review.NEWS, Shear, Michael D., Yee, Vivian, 'Dreamers' to Stay in U.S. for Now, but Long-Term Fate Is Unclear,weblink June 18, 2017, The New York Times, June 17, 2017, A17, On June 19, Watson complied with the Ninth Circuit's decision and revised the injunction such that it would exempt "internal review procedures that do not burden individuals outside of the executive branch of the federal government".NEWS,weblink Judge narrows injunction on Trump travel ban, Politico, Gerstein, Josh, June 19, 2017, June 20, 2017, On June 26, in an unsigned per curiam decision, the U.S. Supreme Court stayed the lower court injunctions as applied to those who have no "credible claim of a bona fide relationship with a person or entity in the United States".WEB,weblink State of Hawaii v. Trump – Civil Rights Litigation Clearinghouse, www.clearinghouse.net, NEWS, Shear, Michael D., Liptak, Adam, Supreme Court Takes Up Travel Ban Case, and Allows Parts to Go Ahead,weblink July 21, 2017, The New York Times, June 27, 2017, A1, The Court also granted certiorari and set oral arguments for the fall term. The Court did not clarify what constitutes a bona fide relationship.NEWS, Jordan, Miriam, With 3 Words, Supreme Court Opens a World of Uncertainty for Refugees,weblink July 21, 2017, The New York Times, June 28, 2017, A1, Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, partially dissented, writing that the lower courts' entire injunctions against the executive order should be stayed.On June 29, Trump sent out a diplomatic cable to embassies and consulates seeking to define what qualifies as a "bona fide relationship", excluding connections with refugee resettlement agencies, and clarifying that step-siblings and half-siblings are close family while grandparents and nephews are not.NEWS, Gardiner Harris, Michael D. Shear, Ron Nixon, Administration Moves to Carry Out Partial Travel Ban,weblink July 21, 2017, The New York Times, June 30, 2017, A1, On July 14, Watson found that Trump's limitations on refugee resettlement agencies and family definitions violated the Supreme Court's order, writing "grandparents are the epitome of close family members".NEWS, Jordan, Miriam, Grandparents Win Reprieve From Trump Travel Ban in Federal Court,weblink July 21, 2017, The New York Times, July 15, 2017, A9, On July 19, the Supreme Court left Watson's order on family definitions in place but stayed while on appeal the part of his injunction on refugee resettlement agencies.NEWS, Liptak, Adam, Adam Liptak, Trump Refugee Restrictions Allowed for Now; Ban on Grandparents Is Rejected,weblink July 21, 2017, The New York Times, July 20, 2017, A16, Justices Thomas, Alito, and Gorsuch said they would have stayed Watson's entire order. The Court also scheduled oral arguments in the case for October 10. After Watson's order allowing refugee resettlements was then affirmed on appeal, the Supreme Court, on September 12, issued a stay blocking the order indefinitely.NEWS, Liptak, Adam, Adam Liptak, Justices Allow Refugee Ban While Case Proceeds,weblink October 11, 2017, The New York Times, September 13, 2017, A15,

Presidential Proclamation 9645

On September 24, 2017, Trump signed the new Presidential Proclamation replacing and expanding the March Executive Order.NEWS, Shear, Michael D., New Order Indefinitely Bars Almost All Travel From Seven Countries,weblink October 11, 2017, The New York Times, September 25, 2017, A1, The Supreme Court canceled its hearing and Solicitor General Noel Francisco asked the Court to declare the case moot and vacate the lower courts' judgments.NEWS, Howe, Amy, Government, challengers file on future of travel-ban litigation,weblink October 11, 2017, SCOTUSblog, October 5, 2017, On October 10, the Supreme Court did so with regard to the Fourth Circuit case.NEWS, Gerstein, Josh, Supreme Court drops one Trump travel ban case,weblink October 11, 2017, Politico, October 10, 2017, Justice Sotomayor dissented, saying the Court should not vacate the judgment below but only dismiss its review as improvidently granted. The Court took no action on the Ninth Circuit case, which addressed Trump's refugee ban that expired on October 24.NEWS, Howe, Amy, Justices end 4th Circuit travel-ban challenge,weblink October 11, 2017, SCOTUSblog, October 10, 2017, The Supreme Court allowed the travel ban to go into full effect on December 4, pending legal challenges. Seven of the nine justices lifted the injunctions imposed by the lower courts, while two justices wanted the order blocked.NEWS,weblink Trump travel ban: Supreme Court lets restrictions take full effect, BBC, On December 22, a three-judge panel of United States Court of Appeals for the Ninth Circuit ruled that Trump's Executive Order "exceeds the scope of his delegated authority" to deem classes of people by their national origin ineligible to enter the country under the Immigration and Nationality Act.NEWS,weblink Appeals Court Rules Against Latest Travel Ban, Jordan, Miriam, 2017-12-22, The New York Times, 2017-12-23, en-US, 0362-4331, In response, the Trump administration petitioned the Supreme Court for writ of certiorari to challenge the Ninth Circuit's findings, which the Court granted on January 22, 2018.NEWS, Liptak, Adam, Supreme Court to Consider Challenge to Trump's Latest Travel Ban,weblink February 16, 2018, The New York Times, January 20, 2018, A16,

Supreme Court

The Court heard oral argument in Trump v. Hawaii (Docket 17-965) for an hour on April 25, 2018, during which Solicitor General of the United States Noel Francisco represented the federal government and Neal Katyal represented Hawaii.