Trump v. Hawaii – immigrationcourtside.com

AMERICA’S FLAILING & FAILING JUDICIARY: ACHIEVING “EQUAL JUSTICE FOR ALL” REQUIRES COURAGEOUS AND EMPATHETIC JUDICIAL LEADERSHIP — Don’t Expect It From A Supremes’ Majority Firmly Wedded to Promoting “Dred-Scottification” (De-Humanization) of “The Other!”

https://www.nytimes.com/2020/06/04/opinion/sunday/supreme-court-religion-coronavirus.html

Linda Greenhouse writes in The NY Times:

The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.

A Southern California church, represented by a Chicago-based organization, the Thomas More Society, which most often defends anti-abortion activists, had sought the justices’ intervention with the argument that by limiting worshipers to the lesser of 25 percent of building capacity or 100 people, while setting a 50 percent occupancy cap on retail stores, California was discriminating against religion in violation of the Constitution’s Free Exercise Clause.

Given the obvious difference between walking through a store and sitting among fellow worshipers for an hour or more, as well as the documented spread of the virus through church attendance in such places as Sacramento (71 cases), Seattle (32 cases) and South Korea (over 5,000 cases traced to one person at a religious service), California’s limits are both sensitive and sensible, hardly the basis for constitutional outrage or judicial second-guessing.

So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?

It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.

As an astonished country witnessed on Monday night, as he held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude. The recognition that four Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — would have invoked the court’s power to undermine fact-based public policy in the name of a misbegotten claim of religious discrimination was beyond depressing. It was terrifying.

Does that sound like an overstatement? Take a look at Justice Kavanaugh’s dissenting opinion. “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses,” he wrote. “Such discrimination violates the First Amendment.”

It’s interesting that while Justices Gorsuch and Thomas signed Justice Kavanaugh’s opinion, Justice Alito did not. Perhaps he’s just too good a lawyer to subscribe to the flimsy analysis underlying this opinion. Fair enough, but he evidently couldn’t be bothered to explain his own dissenting vote. And no less than his fellow dissenters, he obviously inhaled the unfounded claim of religious discrimination that the president has injected into an atmosphere already saturated with polarizing rhetoric.

. . . .

*********************

Read the rest of Linda’s op-ed at the above link.

This is just a symptom of an ongoing cancer at the Court. Cases like Hawaii v. Trump (“greenlighting” arbitrary and capricious punishment of refugees, Muslims, certain immigrants based on clearly pretextual “security grounds”), Wolf v. Innovation Law Lab (“Let ‘Em Die in Mexico!” Particularly when they are “only” Central American asylum seekers), and Wolf v. Cook County (final greenlighting of Stephen Miller’s racist scheme to deny health care and spread deadly fears in American Hispanic communities) should all have been 9-0 in favor of those opposing Trump’s racially-biased, illegal, unconstitutional policies.

Additionally, Trump Toady Solicitor General Noel Francisco should have been strongly cautioned against continuing to bend the ethical codes with largely fabricated “emergencies” intended to interfere with the normal functioning of the Federal Courts.

Instead, the Supremes’ majority gave the regime totally undeserved, immoral victories in all three cases. As a result, many innocent individuals were denied rights, forced into life-threatening conditions, and some even died. The Supremes’ inflicted damage on society at large. They assisted in trampling social justice and human rights. They grotesquely perverted and “turned on its head” the concept of “irreparable harm.” They indelibly and irreparably damaged their reputation and our system of justice.

In the meantime, the message to Francisco and the rest of his human rights denying scofflaw crowd over at the DOJ is clear: Justice is dead, courage has fled, you’re in charge.

Unhappily, by most accounts, the tone-deaf and disconnected Supremes’ majority might be on the cusp of throwing more gasoline on the fires of social justice, at the worst possible time for our nation. If, as expected, they endorse the regime’s intentionally cruel, illegal, dishonest, and racially charged scheme to,”shaft” Dreamers — some of our finest young people, many of whom are “essential workers” — it’s likely to spark more justified outrage and further protests!

So certain are the regime’s White Nationalists that they have the “J.R. Five” in their pocket that they reportedly already are planning to use these American youths as “hostages” to demand even further immigration restrictions as “ransom” from House Dems. The Dems are unlikely to bite, so Dreamers will be left to “twist in the wind” pending the results of the election.

The Supreme Court majority has been hand selected by the GOP to insure that a minority, anti-democratic ideology, often willfully devoid of humanity and historical awareness, will continue to exercise disproportionate influence over the U.S. legal system for years, perhaps decades, to come.

We can’t change the past. But, a better “appointing authority” will be a start of long overdue change and “pushback” from the forces and institutions of democracy, humanity, and racial justice to restore integrity to our highest Court that, in actuality, now functions more like the lowest denominator and an instigator of racial and institutional injustice in our hurting nation.

Due Process Forever! Complicit Courts Never!

PWS

06-06-20

GEORGE PACKER @ THE ATLANTIC: With Failed Institutions & Lousy Leaders, Including a President Leading the Charge to the Bottom, America Faces An Uncertain Future — “A responsible establishment doesn’t exist. Our president is one of the rioters.” — Joe Biden & The Dems Could Be The Last, Best Hope For American Democracy & Real Progress Toward “Equal Justice For All!”

George Packer
American Journalist, Author, Playwright

https://apple.news/A-6795FCPQU6LRBMW1_nzvw

Packer writes in The Atlantic:

IDEAS

Shouting Into the Institutional Void

Demonstrators are hammering on a hollowed-out structure, and it very well may collapse.

The urban unrest of the mid-to-late 1960s was more intense than the days and nights of protest since George Floyd was murdered by a Minneapolis policeman. More people died then, more buildings were gutted, more businesses were ransacked. But those years had one advantage over the present. America was coming apart at the seams, but it still had seams. The streets were filled with demonstrators raging against the “system,” but there was still a system to tear down. Its institutions were basically intact. A few leaders, in and outside government, even exercised some moral authority.

In July 1967, immediately after the riots in Newark and Detroit, President Lyndon B. Johnson created a commission to study the causes and prevention of urban unrest. The Kerner Commission—named for its chairman, Governor Otto Kerner Jr. of Illinois—was an emblem of its moment. It didn’t look the way it would today. Just two of the 11 members were black (Roy Wilkins, the leader of the NAACP, and Edward Brooke, a Republican senator from Massachusetts); only one was a woman. The commission was also bipartisan, including a couple of liberal Republicans, a conservative congressman from Ohio with a strong commitment to civil rights, and representatives from business and labor. It reflected a society that was deeply unjust but still in possession of the tools of self-correction.

The commission’s report, written by the executive director, David Ginsburg, an establishment liberal lawyer of New Deal vintage, appeared at the end of February 1968. It became an instant million-copy best seller. Its language is bracing by the standards of any era: “What white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.” The report called for far-reaching policy reforms in housing, employment, education, and policing, to stop the country from becoming “two societies, one black, one white—separate and unequal.”

[Anne Applebaum: History will judge the complicit]

It was too much for Johnson, who resented not being credited for his efforts to achieve civil rights and eradicate poverty, and whose presidency had just been engulfed by the Tet Offensive in South Vietnam. He shelved the report. A few weeks later, on the evening of April 4, Martin Luther King Jr. was killed in Memphis. The next night, Johnson—who had just announced that he wouldn’t run for reelection—spoke to a country whose cities were burning from coast to coast. “It is the fiber and the fabric of the republic that’s being tested,” he said. “If we are to have the America that we mean to have, all men of all races, all regions, all religions must stand their ground to deny violence its victory in this sorrowful time, and in all times to come. Last evening, after receiving the terrible news of Dr. King’s death, my heart went out to his family and to his people, especially to the young Americans who I know must sometimes wonder if they are to be denied a fullness of life because of the color of their skin.” To an aide, he was more blunt in assessing the uprising: “What did you expect? I don’t know why we’re surprised. When you put your foot on a man’s neck and hold him down for 300 years, and then you let him up, what’s he going to do? He’s going to knock your block off.”

King’s murder and the riots it sparked propelled Congress to pass, by an overwhelming and bipartisan margin, the decade’s last major piece of civil-rights legislation, the Civil Rights Act of 1968, which enforced fair standards in housing. Johnson signed it on April 11. It was too late. The very best reports, laws, and presidential speeches couldn’t contain the anger in the streets. That year, 1968, was when reform was overwhelmed by radicalization on the left and reaction on the right. We still live in the aftermath. The language and ideas of the Kerner Report have haunted the years since—a reminder of a missed chance.

The difference between 1968 and 2020 is the difference between a society that failed to solve its biggest problem and a society that no longer has the means to try. A year before his death, King, still insisting on nonviolent resistance, called riots “the language of the unheard.” The phrase implies that someone could be made to hear, and possibly answer. What’s happening today doesn’t feel the same. The protesters aren’t speaking to leaders who might listen, or to a power structure that might yield, except perhaps the structure of white power, which is too vast and diffuse to respond. Congress isn’t preparing a bill to address root causes; Congress no longer even tries to solve problems. No president, least of all this one, could assemble a commission of respected figures from different sectors and parties to study the problem of police brutality and produce a best-selling report with a consensus for fundamental change. A responsible establishment doesn’t exist. Our president is one of the rioters.

After half a century of social dissolution, of polarization by class and race and region and politics, there are no functioning institutions or leaders to fail us with their inadequate response to the moment’s urgency. Levers of influence no longer connect to sources of power. Democratic protections—the eyes of a free press, the impartiality of the law, elected officials acting out of conscience or self-interest—have lost public trust. The protesters are railing against a society that isn’t cohesive enough to summon a response. They’re hammering on a hollowed-out structure, and it very well may collapse.

[James Fallows: Is this the worst year in modern American history?]

If 2020 were at all like 1968, the president would go on national television and speak as the leader of all Americans to try to calm a rattled country in a tumultuous time. But the Trump administration hasn’t answered the unrest like an embattled democracy trying to reestablish legitimacy. Its reflex is that of an autocracy—a display of strength that actually reveals weakness, emptiness. Trump’s short walk from the White House to St. John’s Episcopal Church had all the trappings of a strongman trying to show that he was still master of the country amid reports that he’d taken refuge in a bunker: the phalanx of armored guards surrounding him as he strutted out of the presidential palace; the tear gas and beatings that cleared his path of demonstrators and journalists; the presence of his daughter, who had come up with the idea, and his top general, wearing combat fatigues as if to signal that the army would defend the regime against the people, and his top justice official, who had given the order to raid the square.

William Barr has reacted to the killing of George Floyd like the head of a secret-police force rather than the attorney general of a democratic republic. His first act was not to order a federal investigation into the Minneapolis Police Department, but—as he’s done before—to rush out ahead of the facts and try to control public opinion, by announcing that the violence following Floyd’s death was the work of left-wing agitators. Streets of the nation’s capital are now blocked by security forces from Barr’s Department of Justice—many from the Federal Bureau of Prisons—wearing uniforms that make them impossible to identify, like paramilitary troops with unknown commanders.

The protests have to be understood in the context of this institutional void. They resemble the spontaneous mass cry of a people suffering under dictatorship more than the organized projection of public opinion aimed at an accountable government. They signify that democratic politics has stopped working. They are both utopian and desperate.

[Read: The double standard of the American riot]

Some public figures—politicians, policy experts, civic leaders—have come forward with proposals for changing the mindset and tactics of the police. Terrence Floyd, the brother of the murdered man, urged protesters to educate themselves and vote. But the overwhelming message of the protests is simply “end racism,” which would be a large step toward ending evil itself. The protesters are demanding an absolute, as if they’ve stopped expecting the state to produce anything that falls a little short. For white protesters—who are joining demonstrations on behalf of black freedom and equality in large numbers for the first time since Selma, Alabama, 55 years ago—this demand means ending an evil that lies within themselves. It would be another sign of a hollow democracy if the main energy in the afterglow of the protests goes into small-group sessions on white privilege rather than a hard push for police reform.

. . . .

This is where we are. Trust is missing everywhere—between black Americans and police, between experts and ordinary people, between the government and the governed, between citizens of different identities and beliefs. There’s an election coming in five months. It won’t end racism or the pandemic, or repair our social bonds, or restore our democracy to health. But it could give us a chance to try, if we get that far.

**********************

Read the rest of Packer’s article at the above link.

Well said! The only thing missing is specific reference to the toxic failure of the U.S. Supreme Court.

We once had a Court with the legal experience, ethics, vision, and moral courage to lead America forward toward a more just and equal society. That’s been totally dissipated by years of GOP erosion of the Court’s legal expertise, practical problem-solving ability, humanity, courage, vision of a better future for all in America, and integrity.

The “journey downward and march backward” from Brown v. Board of Education to legal travesties like Trump v. Hawaii and Wolf v. Innovation Law Lab (to name just two glaring examples of the Court’s disgraceful and illegal “Dred Scottification” of the other in our society) is certainly one of the most outrageous, disturbing, and disgusting tales in post-Plessy v. Ferguson American jurisprudence.

The Court’s abject failure to move forward and make voting rights and equal justice for all a reality is in no small measure linked to the death of George Floyd and other Americans of color and the nationwide protests of injustice. Failure of judicial integrity, vision, and leadership — in other words failures of both legal and moral justice — imperils our nation and many of its inhabitants.

America already faces long-term threats to our justice system and those it supposedly serves from the irresponsible and poorly-qualified life-tenured judicial appointments of Trump and the Mitch-led GOP. To them, things like “equal justice for all,” “voting rights,” “due process for all,” “women’s rights,” and “human rights” are just cruel hoaxes — things to be privately mocked, publicly “lip-serviced,” then buried forever beneath an avalanche of disingenuous and opaque legal gobbledygook intended to hide their true anti-democratic, White Nationalist enabling intent. The appointment of any more Justices along the lines of the “J.R. Five” likely would be the final “nail in the coffin” for our democratic republic! 🏴‍☠️👎🏻🥵

This November, vote like your life depends on it! Because it does!

PWS

06-06-20

SUPREME HIT ON CONSTITUTION: 5-4 COURT COULD GIVE TRUMP FREE REIN ON IMMIGRATION – ADMINISTRATION WINS BIG IN TRUMP V. HAWAII!

Trump v. Hawaii17-965_h315

Trump v. Hawaii, No. 17-965, June 30, 2018

MAJORITY: ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, ALITO, and GORSUCH, JJ., joined.

CONCURRING OPINIONS: KENNEDY, J., and THOMAS, J., filed concurring opinions.

DISSENTING OPINIONS: BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

COURT SYLLABUS:

In September 2017, the President issued Proclamation No. 9645, seek- ing to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the infor- mation needed to assess whether nationals of particular countries present a security threat. The Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. Foreign states were selected for inclusion based on a re- view undertaken pursuant to one of the President’s earlier Executive Orders. As part of that review, the Department of Homeland Securi- ty (DHS), in consultation with the State Department and intelligence agencies, developed an information and risk assessment “baseline.” DHS then collected and evaluated data for all foreign governments, identifying those having deficient information-sharing practices and presenting national security concerns, as well as other countries “at risk” of failing to meet the baseline. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their practices, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient. She recommended entry restrictions for certain nationals from all of those countries but Iraq, which had a close cooperative re- lationship with the U. S. She also recommended including Somalia, which met the information-sharing component of the baseline stand- ards but had other special risk factors, such as a significant terrorist presence. After consulting with multiple Cabinet members, the Pres- ident adopted the recommendations and issued the Proclamation.

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Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he de- termined that certain restrictions were necessary to “prevent the en- try of those foreign nationals about whom the United States Gov- ernment lacks sufficient information” and “elicit improved identity- management and information-sharing protocols and practices from foreign governments.” The Proclamation imposes a range of entry re- strictions that vary based on the “distinct circumstances” in each of the eight countries. It exempts lawful permanent residents and pro- vides case-by-case waivers under certain circumstances. It also di- rects DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the Pres- ident determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals.

Plaintiffs—the State of Hawaii, three individuals with foreign rela- tives affected by the entry suspension, and the Muslim Association of Hawaii—argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforce- ment of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: §1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” and §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The court did not reach the Establishment Clause claim.

Held:
1. This Court assumes without deciding that plaintiffs’ statutory

claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Cen- ters Council, Inc., 509 U. S. 155. Pp. 8–9.

2. The President has lawfully exercised the broad discretion grant- ed to him under §1182(f) to suspend the entry of aliens into the Unit- ed States. Pp. 9–24.

(a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well with- in this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered al-

Cite as: 585 U. S. ____ (2018) 3

Syllabus

iens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.

Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching in- quiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.

The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary de- ferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Procla- mation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequa- cies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality. Pp. 10–15.

(b) Plaintiffs have not identified any conflict between the Proc- lamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable infor- mation. Further, neither the legislative history of §1182(f) nor his- torical practice justifies departing from the clear text of the statute. Pp. 15–20.

(c) Plaintiffs’ argument that the President’s entry suspension vio- lates §1152(a)(1)(A) ignores the basic distinction between admissibil- ity determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on national- ity and other traits. Had Congress intended in §1152(a)(1)(A) to con- strain the President’s power to determine who may enter the country,

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it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have re- peatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war. Pp. 20–24.

3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establish- ment Clause. Pp. 24–38.

(a) The individual plaintiffs have Article III standing to chal- lenge the exclusion of their relatives under the Establishment Clause. A person’s interest in being united with his relatives is suffi- ciently concrete and particularized to form the basis of an Article III injury in fact. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. Pp. 24–26.

(b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discrim- inating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the cam- paign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the signifi- cance of those statements in reviewing a Presidential directive, neu- tral on its face, addressing a matter within the core of executive re- sponsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. Pp. 26–29.

(c) The admission and exclusion of foreign nationals is a “funda- mental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a cir- cumscribed judicial inquiry when the denial of a visa allegedly bur- dens the constitutional rights of a U. S. citizen. That review is lim- ited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow in- quiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of apply- ing rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably

Cite as: 585 U. S. ____ (2018) 5

Syllabus

be understood to result from a justification independent of unconsti- tutional grounds. Pp. 30–32.

(d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclama- tion does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previous- ly designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters. See Holder v. Humanitarian Law Pro- ject, 561 U. S. 1, 33–34.

Three additional features of the entry policy support the Govern- ment’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been re- moved from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for vari- ous categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33–38.

878 F. 3d 662, reversed and remanded.

KEY QUOTE FROM JUSTICE BRYER’S DISSENT:

And, perhaps most importantly, if the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger. How could the Government successfully claim that the Proclamation rests on security needs if it is ex- cluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion.

Unfortunately there is evidence that supports the sec-

4 TRUMP v. HAWAII BREYER, J., dissenting

ond possibility, i.e., that the Government is not applying the Proclamation as written. The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued. The only potentially relevant document I have found consists of a set of State Department answers to certain Frequently Asked Questions, but this document simply restates the Proclamation in plain language for visa appli- cants. It does not provide guidance for consular officers as to how they are to exercise their discretion. See Dept. of State, FAQs on the Presidential Proclamation, https:// travel.state.gov/content/travel/en/us-visas/visa-information- resources/presidential-proclamation-archive/2017-12-04- Presidential-Proclamation.html (all Internet materials as last visited June 25, 2018).

An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants. Letter from M. Waters, Assistant Secretary Legislative Affairs, to Sen. Van Hollen (Feb. 22, 2018). In its reply brief, the Government claims that number increased from 2 to 430 during the first four months of implementation. Reply Brief 17. That number, 430, however, when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats.

Amici have suggested that there are numerous appli- cants who could meet the waiver criteria. For instance, the Proclamation anticipates waivers for those with “sig-

Cite as: 585 U. S. ____ (2018) 5

BREYER, J., dissenting

nificant business or professional obligations” in the United States, §3(c)(iv)(C), and amici identify many scholars who would seem to qualify. Brief for Colleges and Universities as Amici Curiae 25–27; Brief for American Council on Education et al. as Amici Curiae 20 (identifying more than 2,100 scholars from covered countries); see also Brief for Massachusetts Technology Leadership Council, Inc., asAmicus Curiae 14–15 (identifying technology and business leaders from covered countries). The Proclamation also anticipates waivers for those with a “close family member (e.g., a spouse, child, or parent)” in the United States, §3(c)(iv)(D), and amici identify many such individuals affected by the Proclamation. Brief for Labor Organiza- tions as Amici Curiae 15–18 (identifying children and other relatives of U. S. citizens). The Pars Equality Cen- ter identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria. See Brief for Pars Equality Center et al. as Amici Curiae 12–28.

Other data suggest the same. The Proclamation does not apply to asylum seekers or refugees. §§3(b)(vi), 6(e). Yet few refugees have been admitted since the Proclama- tion took effect. While more than 15,000 Syrian refugees arrived in the United States in 2016, only 13 have arrived since January 2018. Dept. of State, Bureau of Population, Refugees, and Migration, Interactive Reporting, Refugee Processing Center, http://ireports.wrapsnet.org. Similarly few refugees have been admitted since January from Iran (3), Libya (1), Yemen (0), and Somalia (122). Ibid.

The Proclamation also exempts individuals applying for several types of nonimmigrant visas: lawful permanent residents, parolees, those with certain travel documents, dual nationals of noncovered countries, and representa- tives of governments or international organizations. §§3(b)(i)–(v). It places no restrictions on the vast majority

6 TRUMP v. HAWAII BREYER, J., dissenting

of student and exchange visitors, covering only those from Syria, which provided 8 percent of student and exchange visitors from the five countries in 2016. §§2(b)–(h); see Dept. of State, Report of the Visa Office 2016, Table XVII Nonimmigrant Visas Issued Fiscal Year 2016 (Visa Report 2016 Table XVII). Visitors from Somalia are eligible for any type of nonimmigrant visa, subject to “additional scrutiny.” §2(h)(ii). If nonimmigrant visa applications under the Proclamation resemble those in 2016, 16 per- cent of visa applicants would be eligible for exemptions. See Visa Report 2016 Table XVII.

In practice, however, only 258 student visas were issued to applicants from Iran (189), Libya (29), Yemen (40), and Somalia (0) in the first three months of 2018. See Dept. of State, Nonimmigrant Visa Issuances by Nationality, Jan., Feb., and Mar. 2018. This is less than a quarter of the volume needed to be on track for 2016 student visa levels. And only 40 nonimmigrant visas have been issued to Somali nationals, a decrease of 65 percent from 2016.Ibid.; see Visa Report 2016 Table XVII. While this is but a piece of the picture, it does not provide grounds for confidence.

Anecdotal evidence further heightens these concerns. For example, one amicus identified a child with cerebral palsy in Yemen. The war had prevented her from receiv- ing her medication, she could no longer move or speak, and her doctors said she would not survive in Yemen. Her visa application was denied. Her family received a form with a check mark in the box unambiguously confirming that “‘a waiver will not be granted in your case.’” Letter from L. Blatt to S. Harris, Clerk of Court (May 1, 2018). But after the child’s case was highlighted in an amicusbrief before this Court, the family received an update from the consular officer who had initially denied the waiver. It turns out, according to the officer, that she had all along determined that the waiver criteria were met. But, the

Cite as: 585 U. S. ____ (2018) 7

BREYER, J., dissenting

officer explained, she could not relay that information at the time because the waiver required review from a super- visor, who had since approved it. The officer said that the family’s case was now in administrative processing and that she was attaching a “‘revised refusal letter indicating the approval of the waiver.’” Ibid. The new form did not actually approve the waiver (in fact, the form contains no box saying “granted”). But a different box was now checked, reading: “‘The consular officer is reviewing your eligibility for a waiver under the Proclamation. . . . This can be a lengthy process, and until the consular officer can make an individualized determination of [the relevant] factors, your visa application will remain refused under Section 212(f) [of the Proclamation].’” Ibid. One is left to wonder why this second box, indicating continuing review, had not been checked at the outset if in fact the child’s case had remained under consideration all along. Though this is but one incident and the child was admitted after considerable international attention in this case, it pro- vides yet more reason to believe that waivers are not being processed in an ordinary way.

Finally, in a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit assert- ing that he and other officials do not, in fact, have discre- tion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’” See Decl. of Christopher Richardson, Alharbi v. Miller, No. 1:18-cv-2435 (June 1, 2018), pp. 3–4. Another report similarly indicates that the U. S. Embassy in Djibouti, which processes visa applications for citizens of Yemen, received instructions to grant waivers “only in rare cases of imminent danger,” with one consular officer reportedly telling an applicant that “‘[e]ven for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty

8 TRUMP v. HAWAII BREYER, J., dissenting

that…would likely lead to the child’s developmental harm or death.’” Center for Constitutional Rights and the Rule of Law Clinic, Yale Law School, Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo 18 (2018).

Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assur- ance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that an- swers to the “exemption and waiver” questions may pro- vide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Court’s decision today leaves the District Court free to explore these issues on remand.

If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two execu- tive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYOR’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent.

KEY QUOTE FROM JUSTICE SOTOMAYOR’S DISSENT:

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neu trality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Mus lims entering the United States” because the policy now masquerades behind a façade of national-security con cerns. But this repackaging does little to cleanse Presi dential Proclamation No. 9645 of the appearance of dis crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Estab lishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla mation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.

. . .

In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g.,Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq.(setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citingKorematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38.

Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac count when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.

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Quick Takes:

Yes, I think it’s as bad as it looks and sounds at first glance!

Anybody who thought that the Supremes would stand up for the Constitution against bias-based Executive overreaching should be disabused of that wishful thinking by this decision.
The majority showed little or no interest in holding Trump within Constitutional norms in the area of immigration.
Seems like the Supremes are inviting a bogus “Asylum Ban” as Trump’s next move, and signaling that they won’t do anything no matter how bad his abuses of the law, the Constitution, or international law might be.
Things are likely to get ugly really fast. And, the Supremes are saying that the last and only hope for getting our country and our Constitution back from the restrictionist regime is at the ballot box.
To make that result unlikely, however, they also turned their backs this week on clear racial and political gerrymandering, thus seeking to guarantee White minority control of all branches of Government for the foreseeable future.

PWS

06-26-18

IMMIGRATIONPROF: Dean Kevin Johnson Gives Us The Supreme’s “Immigration Lineup” For Oct. 2107 — It’s Much More Than Just The Travel Ban!

http://lawprofessors.typepad.com/immigration/2017/09/sessions-v-dimaya-oral-argument-october-2-jennings-v-rodriguez-oral-argument-oct-3-trump-v-intl-refugee-assistance-p.html

Dean Johnson writes:

”The Supreme Court will hear four oral argument in four cases in the first two weeks of the 2017 Term. And the cases raise challenging constitutional law issues that could forecever change immigration law. Watch this blog for previews of the oral arguments in the cases.

Sessions v. Dimaya, Oral Argument October 2. The U.S. Court of Appeals for the Ninth Circuit, in an opinion by the liberal lion Judge Stephen Reinhardt, held that a criminal removal provision, including the phrase “crime of violence,” was void for vagueness.

Jennings v. Rodriguez, Oral Argument, October 3. The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, found that the indefinite detention of immigrants violated the U.S. Constitution.

Dimaya and Jennings are being re-argued, both having originally been argued before Justice Scalia. One can assume that the eight Justice Court was divided and that Justice Gorsuch may well be the tiebreaker.

The final two immigration cases are the “travel ban” cases arising out of President Trump’s March Executive Order:

Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.

Trump v. Hawaii. Oral Argument October 10.”

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Go on over to ImmigrationProf Blog at the above link where they have working links that will let you learn about the issues in these cases.

PWS

09-18-17

Due Process Forever! Complicit Courts Never!

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