Immigration and Citizenship

Hawaii v. Trump

In Hawaii v. Trump, the Supreme Court considered whether President Trump’s travel ban exceeds the President’s delegated powers under the Immigration and Nationality Act and violates the Establishment Clause of the First Amendment.

Case Summary

On January 27, 2017, President Trump issued an executive order that, among other things, banned individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen – all majority Muslim countries – from entering the United States.  On March 6, 2017, President Trump issued a second order, which made a number of minor revisions, but continued to discriminate against and target Muslims.

A federal district court in Hawaii issued preliminary injunctive relief preventing enforcement of Trump’s revised order, and the Trump Administration sued.  CAC filed a friend-of-the court brief on behalf of members of Congress urging the court of appeals to affirm the district court’s decision, and the court of appeals did so.  The Trump Administration asked the Supreme Court to hear the case. The Court agreed to do so and partially stayed the injunction pending appeal.

CAC again filed a friend-of-the-court brief on behalf of members of Congress urging the Justices to strike down Trump’s Muslim ban, but before the Court could hear oral argument, President Trump issued a third travel ban that placed varying levels of travel restrictions on citizens of eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Because the new order superseded the old one, the Supreme Court removed the case from its oral argument schedule and sent it back to the court of appeals with instructions to dismiss the case as moot.

Meanwhile, the plaintiffs filed an amended complaint challenging the third travel ban and sought injunctive relief.  The Hawaii district court issued a preliminary injunction enjoining the new order, which the Government appealed.  (The Supreme Court subsequently stayed the injunction pending disposition of the Government’s appeal and disposition of the Government’s petition for a writ of certiorari if it ultimately filed such a petition.)

CAC filed a friend-of-the-court brief on behalf of members of Congress in the Ninth Circuit in support of the plaintiffs.  The Ninth Circuit affirmed the district court’s preliminary injunction and held that the President once again exceeded the scope of his authority under the INA. The Government asked the Supreme Court to review the Ninth Circuit’s ruling, and it agreed to do so.

CAC filed a friend-of-the-court brief on behalf of members of Congress in support of Hawaii. Our brief first argued that the President’s sweeping order exceeds the President’s delegated powers under the Immigration and Naturalization Act and violates our Constitution’s system of separation of powers.  The order writes discrimination into our nation’s immigration laws, ignoring Congress’s carefully chosen, specific criteria for excluding from our country persons suspected of terrorist activity and flouting Congress’s prohibition on nationality-based discrimination in the issuance of immigrant visas.  The President’s powers, though broad, do not permit him to supersede immigration laws enacted by Congress that he dislikes.

Second, as our brief also explained, even if the order did fall within the President’s delegated authority – which it does not – it would violate the First Amendment’s Establishment Clause, which forbids laws that target a disfavored religious minority for discriminatory treatment.  As history shows, the Framers were familiar with colonial religious establishments that tried to keep out disfavored religious believers.  The First Amendment denies the federal government the power to write this kind of religious discrimination into law.  Because the President’s latest order, like its predecessor, is infected by anti-Muslim animus, it violates the First Amendment.

In a 5-4 decision, the Court upheld President Trump’s travel ban. In a powerful dissent, Justice Sotomayor, writing for herself and Justice Ginsburg, wrote that “[t]he United States of America is a Nation built upon the promise of religious liberty” and that “the Court’s decision . . . fails to safeguard that fundamental principle.” She further explained that “Congress has already erected a statutory scheme that fulfills the putative national-security interests” the government used to justify the ban. In closing, she stated that “our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments” and that the Court’s decision “repeats tragic mistakes of the past[] and denies countless individuals the fundamental right of religious liberty.”

Case Timeline

  • January 27, 2017

    Trump issues first travel ban

  • March 6, 2017

    Trump issues second travel ban

  • March 15, 2017

    Federal district court in Hawaii issues preliminary injunctive relief preventing enforcement of Trump’s revised order, and the Government appeals the injunction

  • April 21, 2017

    CAC files amicus brief in the Ninth Circuit Court of Appeals

    9th Circuit Amicus Brief
  • June 12, 2017

    Ninth Circuit upholds preliminary injunction

    9th Circuit Opinion
  • June 26, 2017

    Supreme Court agrees to review lower court’s preliminary injunction preventing enforcement of the travel ban and issues partial stay of the injunction

  • July 13, 2017

    District court issues interpretation of the Supreme Court’s stay ruling

  • July 18, 2017

    CAC files motion to file brief in opposition to Government’s application to stay the Ninth Circuit’s injunction

    U.S. Sup. Ct. Motion in Opposition
  • July 19, 2017

    Supreme Court issues a partial stay of the modified injunction

    U.S. Sup. Ct. Order
  • September 18, 2017

    CAC files amicus brief in the Supreme Court

    U.S. Sup. Ct. Amicus Brief
  • September 24, 2017

    Trump issues third travel ban

  • October 24, 2017

    Supreme Court vacates the preliminary injunction and remands the case to the Ninth Circuit, with instructions to dismiss the case as moot

  • October 17, 2017

    Hawaii district court issues preliminary injunction enjoining new order, and the government appeals to the Ninth Circuit

  • November 22, 2017

    CAC files amicus brief in the Ninth Circuit

    9th Circuit Amicus Brief
  • December 6, 2017

    Ninth Circuit hears oral argument

  • December 22, 2017

    Ninth Circuit affirms district court’s preliminary injunction

  • January 5, 2018

    Government asks Supreme Court to review the Ninth Circuit’s decision

  • January 19, 2018

    Supreme Court grants government’s petition for certiorari

  • March 30, 2018

    CAC files amicus brief in the Supreme Court

    U.S. Sup. Ct. Merits Stage Brief
  • April 25, 2018

    The Court hears oral argument

  • June 26, 2018

    The Court issues its decision

More from Immigration and Citizenship

Immigration and Citizenship
June 30, 2022

RELEASE: Win for Migrants at Southwest Border and Presidential Authority in Immigration  

WASHINGTON, DC – Following today’s ruling from the Supreme Court in Biden v. Texas—in which...
By: Elizabeth B. Wydra
Immigration and Citizenship
April 26, 2022

RELEASE: Key Weaknesses in States’ Position Exposed at Supreme Court Oral Argument re MPP 

WASHINGTON – Following oral argument at the Supreme Court this morning in Biden v. Texas—a...
By: Miriam Becker-Cohen
Immigration and Citizenship
U.S. Court of Appeals for the Second Circuit

Keisy G.M. v. Decker

In Keisy G.M. v. Decker, the Second Circuit is considering whether prolonged detention without a bond hearing during immigration proceedings violates the Due Process Clause of the Fifth Amendment.
Immigration and Citizenship
March 21, 2022

RELEASE: Bipartisan Former DHS, INS Officials Say to SCOTUS: Fifth Circuit Got It Wrong on MPP

WASHINGTON – Earlier today, Constitutional Accountability Center (CAC) filed a brief in the U.S. Supreme...
By: Brianne J. Gorod
Immigration and Citizenship
U.S. Supreme Court

Biden v. Texas

In Biden v. Texas, the Supreme Court is considering whether 8 U.S.C. § 1225, a provision of the Immigration and Nationality Act, requires the Biden administration to continue implementing the Migrant Protection Protocols in the face...
Immigration and Citizenship
U.S. Court of Appeals for the Second Circuit

Onosamba-Ohindo v. Searls

In Onosamba-Ohindo v. Searls, the Second Circuit is considering whether the government may incarcerate someone without bail during deportation proceedings without showing that the person would likely abscond or be dangerous if released.