Trump v. Hawaii and the Future of Presidential Power over Immigration

Cristina M. Rodríguez Leighton Homer Surbeck Professor of Law, Yale Law School

Since his inauguration, President Donald Trump has been consistent in delivering on a core campaign promise. In the immigration arena, he has transformed vivid campaign statements into actual government policy. The Trump White House, along with the Departments of Justice and Homeland Security, have given political and bureaucratic expression to immigration restrictions. They have exploited the authorities delegated by the Immigration and Nationality Act (INA) to advance a maximalist enforcement agenda and reduce “undesirable” immigration. President Trump launched the most visible and brazen initiative within a week of taking the oath of office, signing the first in a series of executive actions designed to make his most incendiary campaign rhetoric a reality.

On January 27, 2017, Trump’s campaign promise of a “total and complete shutdown of Muslims entering the United States”[1] became a presidential executive order. The president prohibited the entry of all nationals from seven designated Muslim-majority countries and ordered the government to conduct a worldwide review of the information it received from those countries about their nationals who sought entry to the United States.[2] This first of what turned out to be three “entry bans” swept the most broadly, covering all types of potential immigrants and visitors, including lawful permanent residents. It emerged without much by way of inter-agency deliberation. It sowed confusion and disarray at airports upon its release and sparked significant protests across the country.[3]

Instantly, private litigants and state attorneys general rushed to federal court to enjoin the unprecedented assertion of presidential power to exclude non-citizens from the United States. Courts in the Ninth Circuit quickly enjoined the first order.[4] After its rebuke at the court of appeals,[5] the administration issued a second order, again directing a worldwide review of foreign states’ security measures, while keeping a set of slightly narrower exclusions in place pending the review.[6] In September 2017, with the worldwide review complete, the Trump administration issued its third order: Presidential Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats. In it, the president announced the results of the review and imposed a set of indefinite exclusions applicable to nationals from eight foreign states, six of which had overwhelmingly Muslim populations. The proffered justification was that the states’ systems for sharing information about their nationals did not meet the government’s security standards.[7]

All of the lower courts that considered each iteration of the entry ban concluded that it likely contained legal defects, either because aspects of the orders exceeded the statutory authority of the president or because they violated the Constitution.[8] But in a 5-4 ruling announced at the end of October Term 2017, the Supreme Court of the United States turned this tide of litigation back, effectively upholding the proclamation.[9] The Court concluded that the challengers’ statutory claims were wrong and that they had failed to establish the likely success of their constitutional claims. In Trump v. Hawaii, the Court elided powerful evidence of discriminatory motive and proclaimed vast presidential powers at the intersection of two highly sensitive and contested realms of regulation—national security and the policing of entry to the nation.

In the immediate aftermath of the Supreme Court’s decision, commentators widely decried it as an abdication to the will of the president. A debate began in earnest over whether the decision would become the Roberts Court’s Korematsu v. United States—the reviled decision by a previous generation to accept the government’s national security justifications for interning Japanese Americans during World War II.[10] President Trump, after all, had justified his call to shut down Muslim immigration to the United States by claiming that Franklin D. Roosevelt had done the “same thing.” Chief Justice Roberts forcefully resisted the analogy and condemned Korematsu. But whether the analogy was apt, Justice Sotomayor painstakingly laid out the evidence of the president’s anti-Muslim motive in her dissenting opinion, joined only by Justice Ginsburg. If we were to take the man who signed the presidential proclamation at his word, Sotomayor seemed to be saying, he was intent on curtailing Muslim immigration to the United States. And he came to this view, in no small part, through familiar stereotyping and by crediting anti-Muslim propaganda.[11]

Chief Justice Roberts’s opinion does indeed amount to an abdication of judicial responsibility—but not for all of the reasons bandied about in the aftermath of the opinion’s release, and not necessarily with the far-ranging implications feared. The chief justice is on firm analytical and historical ground in rejecting the claim that the president had exceeded his statutory authority. But the Court’s analysis goes awry in two ways. First, the Court treats the president’s proclamation as the product of an ordinary presidency and a properly functioning executive branch; the Court refuses to see our particular president for who he actually revealed himself to be. Second, and more important, in considering whether the president’s proclamation violated anti-discrimination norms embodied in the Establishment Clause, the Court applies a novel and toothless standard of review that prevents the courts from striking down discrimination on racial, religious, or other invidious grounds, in the selection of immigrants to the United States, as long as the government can also present a facially plausible reason for its actions. The Court does not go so far as to say the Constitution does not apply to the president’s exclusion judgments, but in permitting discrimination that almost certainly would have been struck down in another regulatory context, it might as well have.

In reaching its breathtaking conclusion, however, the Court did not utterly compromise the power of judicial review over all matters immigration and presidential power. Herein lies a crucial coda to Trump v. Hawaii. The battle over the scope of the president’s power to enforce the immigration laws has only just begun—in fact, it began in earnest in the Obama years. But there is no reason to treat the deference extended in Trump v. Hawaii in a totalizing fashion, even though Chief Justice Roberts invokes the sensitivity of immigration and national security each time the going gets rough in his analysis. For one thing, the weakness of the statutory arguments in this case notwithstanding, the intricacies of the INA do cabin the scope of the president’s power. More important, lower courts and commentators can and should actively read Trump v. Hawaii as limited to its very particular context—to an anti-discrimination claim against the decision to exclude non-citizens on the precipice of entry and outside the custody and control of the United States.

With respect to immigration enforcement generally, including at the border, long-recognized constitutional constraints apply to the president’s choices (and Congress’s, for that matter), even when they can be cloaked with the veneer of national security. The courts have been especially crucial in their application of the Fifth Amendment’s Due Process Clause to the federal government’s enforcement policies. The Court in Trump v. Hawaii did not purport to overturn any of the precedents that rely on the clause to limit the government’s power, nor would the mode of analysis in Trump v. Hawaii even make sense in a due process inquiry, which does not revolve around the decision-maker’s motives. Serious questions about the actual depth or extent of the protections afforded under the clause remain unanswered and the subject of hot-button litigation. But nothing in Trump v. Hawaii prevents the ongoing and vigorous application of the clause to limit behavior that would be deemed abusive regardless of context. The lower courts, therefore, should continue to apply and even extend the reach of the Due Process Clause, in all cases where the government exerts control or coercive authority over non-citizens, particularly through detention, deportation, and the abrogation of reliance intersts.

I. Of Statutes and Constitutions

Though the import of Trump v. Hawaii rests mainly with its constitutional analysis, we should begin where is traditional, with the statute at issue. Statutory claims against government action are often safer than constitutional ones. In immigration law, in particular, where courts historically have extended great deference to the political branches, and the scope of the rights of immigrants is either limited, uncertain, or non-existent, litigants often turn to statutory strategies. Our recent jurisprudential past is filled with preemption rather than equal protection claims against state laws designed to crack down on illegal immigration,[12] and constitutional avoidance claims meant to produce narrow readings of statutes and enable courts to side-step profound questions about the reach of constitutional due process.[13] In this vein, challengers of the entry-ban orders forcefully argued that President Trump’s actions exceeded the president’s statutory authority and therefore had no legal basis.

President Trump grounded each of his executive actions in a simple and breathtaking provision of the INA. Section 212(f) gives the president a mostly unqualified power to deny entry to “any aliens or class of aliens” whose entry would be “detrimental to the United States.”[14] In Trump v. Hawaii, the Supreme Court rejected a central conclusion reached by the Ninth Circuit and pressed widely by the advocacy community—that the president’s use of Section 212(f) was inconsistent with the complex statutory scheme Congress had elaborated over the years to screen potential immigrants, including for national security risks.[15]

Not too surprisingly, Chief Justice Roberts begins with straightforward textualism. The terms of Section 212(f) itself are quite clear and broad. The power delegated contains no qualifications, except to establish that the power to deny entry kicks in when the president finds that entry would be detrimental to the nation’s interests. Indeed, the legislators who drafted Section 212(f) in 1952 understood its breadth. Representative Emanuel Celler argued that it did too little to constrain the reasons the president might invoke to suspend immigration, permitting “the President of the United States willy-nilly, on good grounds, or—if I may be facetious—on coffee grounds, to suspend totally any immigration into this country.”[16] Others argued that such broad authority, while perhaps appropriate as a war-time emergency measure, should never be made a permanent fixture of immigration law. But that, by the statute’s terms, is what Congress did.

For the Court, the worldwide review of foreign governments’ cooperation in providing information about their nationals needed by the United States to assess security risks more than sufficed to meet the minimal national interest prerequisite of the statute. Moreover, the proclamation itself contained findings more extensive than any provided by any previous president invoking Section 212(f)[17]—the sort of national security findings whose veracity or relevance courts rarely second guess. It didn’t matter that no previous presidential order swept quite as broadly, or that the worldwide review accompanying Proclamation 9645 only came after the botched roll out of an incompletely vetted initial order in the first week of Trump’s presidency.[18]

The Court then goes on to reject Hawaii’s claim that the structure of the INA precludes the president’s actions—that he can supplement but not supplant Congress’s work. The Court recognizes the president’s actions as complements to the security screenings laid out in meticulous detail in the immigration code. But, “in any event,” the Court writes, “no Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort in [Section 212(f)]”—language that by its terms vests authority in the president to make exclusion beyond what the INA provides.[19]

We have seen the claim that the complexity of the INA limits presidential power before. Leading opponents of President Obama’s efforts to grant deferred action and work authorization to millions of unauthorized immigrants living in the United States—to the parents of U.S. citizens and lawful permanent residents—invoked the INA to claim that he acted unlawfully, usurping Congress’s comprehensive authority to control immigration policy. The statutory context for the debate over President Obama’s relief plans differed in important respects from § 212(f), not least because President Obama actually had far less of an explicitly textual basis for his actions than President Trump. But opponents of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) relied on the same structure of an argument and succeeded in convincing lower courts that President Obama’s proposal went beyond the reticulated statutory scheme Congress had created to concretize the nation’s commitment to humanitarian relief and family unification.[20]

If the Supreme Court had followed the Ninth Circuit and limited this “facially broad grant of power”[21] with an appeal to the complex statutory regime that Congress subsequently erected for processing visas and screening for national security risks, it would not just have flouted the narrow textualist conventions beloved by conservative judges and lawyers.[22] It would have cast legal uncertainty over numerous presidential policy initiatives across history, not just DACA and DAPA. Take, for example, the president’s invention of U.S. refugee policy. From the end of World War II until 1980, presidents used discrete powers delegated to them by Congress to admit hundreds of thousands of refugees to whom Congress had not otherwise opened avenues for entry. Even after Congress objected, presidents continued their actions, advancing a vision of the country as open to persons fleeing oppression.[23] Trump was arguably on firmer statutory ground than his predecessors, because the delegation on which he relied was written in clear and broad terms, whereas the parole power employed by numerous twentieth-century presidents to admit refugees was drafted for individualized, not categorical, humanitarian relief.[24]

Of course, each of these episodes of statutory creativity can be distinguished from one another with fact-based, lawyerly acumen, to achieve a desired result. But the mode of statutory analysis pressed by Hawaii is inconsistent with how presidents have acted under the INA for decades. We would be wise to think twice before limiting presidential authority over immigration by invoking an approach to statutory interpretation and a conception of congressional policy tailored to the outcomes we seek in an individual case. As Adam Cox and I have shown in our work together, the president has been a vital immigration policy maker throughout our history, complementing and challenging Congress where the legislature has otherwise been unable or unwilling to address genuine policy problems. That role has depended on making good use of statutes.

What is more, as Cox and I also have argued, the form of statutory analysis advanced in Trump v. Hawaii is indeterminate and gives far too much credence to the notion that the immigration code constitutes an internally consistent and comprehensive plan.[25] Despite having enacted and repeatedly amended a sprawling immigration code, Congress has not erected a comprehensive plan for the implementation of the immigration laws. Initially adopted in 1952 and amended in significant fashion many times since, the INA consists of “a long series of legislative accretions.” [26] Each addition to the code embodies the weighing of different and even conflicting priorities by multiple Congresses across time. As we have written: “[t]he legislative ‘plan’ of the INA is so full of internal contradictions and complexities as to be nearly impossible to characterize as pursuing concrete ‘priorities’ at anything other than the highest level of generality.”[27] On the merits, and in the case of Section 212(f), it does not seem inconsistent to have an elaborate screening process with detailed rules for consular and border officials to follow and to also give the president broad power to prevent the entry of aliens. The former establishes rules for the operation of the vast immigration bureaucracy, and the latter gives the president a power almost certain to be occasional and targeted, even if in particular instances it become a trump of the ordinary operation of immigration law.

The statutory problem with President Trump’s orders stemmed not from his interpretation of his authority, but from the breadth of the very authority Congress delegated. Only Congress (and in a less direct fashion the electorate) can do anything about the scope of the delegation. Indeed, in the hands of another president, a similarly broad and targeted executive order would have been legal because authorized under statute. But in light of what President Trump’s executive orders have revealed to us about the potential of Section 212(f), Congress should scale back the power it once gave. It could make explicit the numerous limitations advocates sought to pull from the interstices of the INA, including by requiring that the president present detailed factual findings to justify his exclusions, or that exclusions be limited to times of national emergency, or to particular human rights violators or bad actors (as past presidents have done).

Until Congress takes steps of this sort (a legislative fantasy in our current polarized world), Section 212(f) is the most capacious single expression of our contemporary reality, in which the president stands at the center of American immigration policy. This is not to say that the INA does not constrain the president. Even though Section 212(f) delegates broadly, the intricate statutory scheme does keep executive power within bounds. The president could not, for example, begin deporting noncitizens on grounds not specified by Congress. But the breadth of the president’s power, as he sits atop the immigration enforcement machinery, makes it all the more important to be clear and determined about the constraints the Constitution places on his behavior. This realization is part of what makes Trump v. Hawaii so dispiriting, because the opinion profoundly limits the reach of constitutional review.

II. The President, the Presidency, and Discrimination

A. The Facial Presidency

In his opinion for the Court, Chief Justice Roberts reasons about the challenges the president faces and his national security decionmaking in the abstract. He treats the executive branch as consisting of a national security bureaucracy under the direction of a chief executive, which together manages our perilous world by bringing expertise, gathered intelligence, and the nuances of the foreign policy craft to bear.[28] The Court certainly expresses disappointment at the anti-Muslim statements made by the man who is actually president, comparing him unflatteringly to his predecessors who spoke about Muslims and minorities using words of inclusion. But the Court resists treating the decion-making process behind the proclamation as the product of that actual person. The opinion comes close to positing a world where the president is nothing more than a synecdoche, and where Donald Trump and his Twitter account do not exist. It treats the process that produced the final version of the entry ban as part of an ordinary presidency operating in our era of heightened national security deference, rather than as the culmination of a very particular and highly insidious political process. It therefore accepts the national security justification for the proclamation offered by the government in litigation at face value and dismisses the copious evidence of the president’s anti-Muslim intent as legally beside the point.

In the aftermath of the opinion’s release, a piece of conventional wisdom about this approach began to emerge among the decision’s supporters. According to this view, Chief Justice Roberts acted to preserve the prerogatives of the presidency, ensuring that future leaders had the ambit to make tough national security choices without the Court looking over their shoulders to scrutinize their intentions. This observation is a distraction. The institutional prerogatives the Court supposedly preserved would not have been threatened by meaningful judicial consideration of a president’s discriminatory motives.

To put it bluntly, no future president needs to feel free to indulge his prejudices in the making of national security or immigration policy. To strike down the proclamation based on the record of Donald Trump’s statements revealing his reasons for signing the proclamation would not have chilled decision-making genuinely designed to mitigate risks. Even in a future world in which the Court had struck down the proclamation issued by the current occupant of the office, policies that might require nationality classifications or have a disparate impact on certain groups would still have benefitted from the deferential review afforded national security-related immigration judgments, for reasons I explore in more detail in Part III of this essay.[29] Holding one president to account for blatantly discriminatory conduct would not have changed that.

In the course of turning Trump v. Hawaii into a separation of powers case, with an archetypal presidency in mind, the Court begins in a conventional place, but then takes the opinion in a radical direction. Chief Justice Roberts opens by articulating a standard of review that embodies the abstract concept of the presidency. In Kleindienst v. Mandel, the Court acknowledged the propriety of a “circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.”[30] The Court in Mandel limited review of the attorney general’s decision in that case to deny a visa to a revolutionary Marxist, who had been invited to speak at Stanford University, to whether the executive had given a “facially legitimate and bona fide reason” for the decision.[31] This standard means that the Court will neither look behind the exercise of discretion nor balance the government’s interests against the interests of U.S. citizens, as long as a facially plausible, good faith reason for the immigration action at issue exists.[32]

Chief Justice Roberts makes very clear that the Mandel standard alone would have been enough to decide the case. On its first requirement, he seems correct; the national security justifications for suspending the entry of the groups listed in the proclamation would seem to satisfy facial plausibility; to say otherwise really would substitute the Court’s national security judgment for the president’s and threaten the presidency’s institutional prerogatives.[33] But in finding the worldwide review to be bona fide, Chief Justice Roberts doubles down on the formality of his analysis, in a way that is arguably inconsistent with the standard itself. He prioritizes the hypothetical president, for whom the worldwide review would have been a sincere exercise and whose conclusions drawn from the review would have been plausible. He does not engage with the possibility that this particular president’s judgments—that the whole worldwide review process—were in bad faith, with a pre-determined outcome.

To even question the president’s good faith in setting national security policy might seem in tension with the heavy dicta in numerous Court opinions calling for delicacy. But unless some inquiry into the integrity of the reason given by the executive is permitted under the Mandel standard of review, the concept of “bona fide” does no work. It could well have been that the worldwide review itself was conducted in good faith by the officials who performed it, and there may be no reason to doubt the conclusions drawn about the reliability of the information provided by the countries listed in the proclamation. But the Court does not even explore this question, preferring instead to emphasize facial plausibility.[34] The Court thus leaves it to Justices Breyer and Kagan in dissent to call for more of a probe into whether the national security claims were concocted to justify a pure political choice.[35]

Still and all, this application of the Mandel standard, though worthy of debate, is not what makes the decision so radical. Chief Justice Roberts could have left it there. The outcome would have been startling. But it would not have clearly licensed discrimination by the president, even though it would still have seemed willfully obtuse about the president’s motives. Instead, in accepting the federal government’s invitation to peer behind the order and apply rational basis to it, the chief justice’s opinion effectively grants that license.

B. Rational Basis Goes Awry

As Adam Cox, Ryan Goodman, and I observed in the immediate aftermath of the opinion’s release, the Court suggests that, at least in national security-tinged exclusion decisions, even an established discriminatory motive would not be enough to invalidate the government’s actions, as long as another, facially legitimate reason for the exclusion existed as well.[36] The Court thus gives the president, and Congress for that matter, a free pass to violate constitutional equality norms when deciding who may enter the country and who may not, as long as the political branches can ascribe another plausible motive to their actions—a feat that will not be difficult for the government to meet, given that the Court is usually loath to challenge assertions of national security needs.

As we noted, this form of deference “marks a departure from the past, not continuity with it.” [37] The so-called plenary power—the specific name given to immigration deference—has never before been used to uphold an immigration policy that would have been unconstitutional under ordinary constitutional review at the time of the immigration decision. But Chief Justice Roberts articulates a standard of review that incorporates the very possibility of such a holding. Accordingly, for the first time since the era of Chinese exclusion in the late nineteenth century, the Court upholds an act that a reasonable observer could have concluded was intended to exclude people on the basis of characteristics—religion, in this case—usually deemed illegitimate grounds for state action.[38]

Perhaps by going down the rational basis road, Chief Justice Roberts sought to assimilate the proclamation with ordinary constitutional law, to demonstrate that the Court was not just rubber stamping an action labeled national security. But his rational basis analysis goes off the rails in two ways and can only be explained by some sort of presidential, immigration, and national security exceptionalism. First, his legal analysis departs from the way courts typically address challenges to facially neutral laws that might be motivated by discriminatory intent. And second, the standard of review he applies is not warranted by the rational basis precedents he cites.[39]

In grappling with the meaning of a facially neutral law, Chief Justice Roberts at least begins on firm ground. He says that rational basis requires considering whether the entry policy is plausibly related to the government’s stated objective to protect the country and improve immigration vetting processes. He then turns to where he should—to the formal, facial reach of the proclamation—concluding correctly that the order is facially neutral as to religion. This feature is what allows him to say that the presidential proclamation is nothing like the order to intern Japanese Americans during World War II upheld by the Court in Korematsu—one of the deepest stains on the Court’s reputation, which Chief Justice Roberts make a production of expressly overruling.[40]

But of course, it’s only his tendency toward formalism that allows him to reach his Korematsu conclusion with indignation. Even a facially neutral law can be motivated by intent to discriminate, making it no better or more constitutional than a law that classifies on its face. And a facially neutral government action that might otherwise survive rational basis scrutiny becomes a different constitutional animal altogether when there is evidence of intent to discriminate.[41]

Chief Justice Roberts’s own opinion, not to mention Justice Sotomayor’s incredulous dissent, lays out evidence of intent aplenty to grapple with. The record was replete with statements that reasonably could have been construed as evincing discriminatory intent, by no less than the chief decisionmaker—the actual signatory to the government orders—himself. Chief Justice Roberts might have concluded or intimated that President Trump’s litany of proclamations concerning Muslim immigrants and Islam did not constitute sufficient evidence of intent. Chief Justice Roberts could have discounted campaign statements and dismissed political rhetoric as non-probative of executive branch motivation.[42] But he did not take this tack. Perhaps the totality of the context, including the shoddy roll-out of the initial order, would have made such a conclusion unpersuasive. Indeed, evidence of intent to discriminate rarely gets much better than what the Court had in front of it. [43]

Instead, Chief Justice Roberts makes the case that the president’s statements were untoward but not legally relevant, because even if the president had a discriminatory intent, his actions should be upheld if supported by another, legitimate basis.[44] He says, “we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”[45] And he concludes, “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.”[46]

Though the opinion doesn’t quite say it in these terms, Chief Justice Roberts appears to be rejecting the possibility of mixed motives, or at least the possibility that a policy with a plausible legitimate motive might be struck down because an illicit motive also drove its promulgation. This is not the way the Court typically reviews facially neutral laws where allegations (and evidence) of discriminatory intent have been raised. Though Hawaii based its claims against the proclamation in the Establishment Clause, the Court’s equal protection precedents are illuminating here in underscoring the implications of the standard of review that Chief Justice Roberts offers.

In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court makes clear that the intent standard announced in Washington v. Davis does not require a showing that the government action at issue rested only on discriminatory grounds.[47] Its rationale is worth quoting in full:

Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision solely motivated by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.[48]

In the face of such proof, the government can still defend its policy on the ground that it would have been enacted even absent the discriminatory motive.[49] The Court could have applied this standard, acknowledged the discriminatory motive, but then concluded that legitimate national security concerns were more proximate to the final decision than the bias reflected in the president’s statements, or that national security concerns would have led the administration to pursue the course that it did, regardless of the president’s malign motivations. It could even have concluded that the government’s national security interests outweighed the costs of discrimination—the basic conclusion in Korematsu, where the Court purported to apply heightened scrutiny but was similarly unwilling to question the underlying national security rationale (and similarly misled about evidence relevant to the government’s claims).[50]

Chief Justice Roberts instead assiduously avoids putting the government’s national security rational to any kind of test. He doesn’t try to answer the admittedly thorny questions of causation these precedents raise,[51] nor does he send the case back to the lower courts to do so. Indeed, the standard of review on which he relies declares this whole anti-discrimination scaffolding irrelevant, because a facially plausible reason was enough to justify an immigration exclusion, even if the exclusion was also motivated by unconstitutional bias.

Interestingly, Chief Justice Roberts chooses to ground this conclusion not in standard rational basis cases reviewing social and economic legislation, but rather in the line of cases known for applying a heightened form of rational basis, in which the Court suspects animus against a group is involved. This turn signals that he understands animus to be part of the case before him, too, and possibly that he hoped to show that the Court’s conclusion was not driven by a complete abdication to executive national security judgments. But the applications of these cases—Moreno v. Department of Agriculture,[52] City of Cleburne v. Cleburne Living Center,[53] and Romer v. Evans[54]—represent the second way in which his analysis goes awry.

Chief Justice Roberts interprets these rational basis with “bite” precedents as holding that laws otherwise subject to rational basis review will be struck down when only animus can explain them—another way of implying that mixed motives do not matter to the case before him. He writes that the cases have the “common thread” that the “laws at issue lack any purpose other than a ‘bare . . . desire to harm a politically unpopular group.’”[55] Again, because he found “persuasive evidence” that President Trump’s entry suspension had a “legitimate grounding in national security concerns, quite apart from any religious hostility,” he concluded that this line of cases required the Court to “accept that independent justification.”[56]

In dissent, Justice Sotomayor seems to adopt this same approach to Romer and its predecessors. She simply concludes that the proclamation had no legitimate purpose. The extensive record of the president’s anti-Muslim utterances both before the proclamation and in relation to it effectively revealed the national security justifications to be a sham—the proclamation instead was issued to express hostility toward Muslims and then dressed up as security vetting. Citing Romer, she writes, “the Proclamation is ‘divorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’ that the policy is ‘inexplicable by anything but animus.’”[57]

While both approaches follow the language and mirror the analysis in Romer, it is by no means clear that it was doctrinally necessary in Trump v. Hawaii to “prove” that the proclamation had no legitimate purpose. The effort to do so opens the dissent to the critique that it refuses to accord any meaningful respect to the executive’s national security statements, because the dissent, like Roberts, rejects the possibility of mixed motives.[58] This implication of the dissent may well be driving those who defend the opinion on the ground that it prioritizes respect for the hypothetical presidency and therefore preserves future presidents’ room to maneuver.

But the circumstances surrounding Romer ultimately differed in crucial respects from those presented by Trump v. Hawaii, because of the very evidence the dissent in the latter uses to discount any legitimate motive on President Trump’s part. The Court in Romer had to infer animus from the overbreadth of the enactment before it, because it did not have the extensive direct evidence that the Court did in Trump v. Hawaii. The semantic formulation of the “test” in Romer—that the policy was inexplicable by anything other than animus against a particular group, which is constitutionally prohibited—was a product of those factual cirucmstances, not a holding that the presence of animus invalidates a government action only when there is no other discernable reason for the action.[59]

In United States v. Windsor, Justice Kennedy seems to take this heightened rational basis standard toward the sort of mixed motive analysis that could have led to invalidation of the entry-ban proclamation without rejecting a facially plausible national security purpose. In Windsor, the federal government could claim a more plausible interest than the state of Colorado in Romer could. Though there is certainly ambiguity about the standard of review he was applying (Justice Kennedy’s opinions increasingly eschewed intricate legalistic analysis over the years), he invalidated the Defense of Marriage Act after concluding that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”[60]

In their dissent in Trump v. Hawaii, Justices Breyer and Kagan seem to be willing to take this kind of approach as a matter of law, though they do not frame it as an interpretation of Romer rational basis review. For them, the question was whether the proclamation’s “promulgation or content was significantly affected by religious animus.”[61] They simply sought more evidence to prove that the national security justification was questionable, such that they could conclude that animus played a significant role in the proclamation’s issuance.[62] To be sure, even this sort of standard would almost certainly not have satisfied Chief Justice Roberts, who probably would have recoiled at striking down a presidential order by questioning the centrality of the national security justification through a finding that its promulgation was significantly affected by religious animus. But Chief Justice Roberts works too hard to make his conclusion—that the Court must accept the presence of religious animus but declare it legally irrelevant—fit the Court’s equality jurisprudence.

The Court thus erects a standard of review alien to existing anti-discrimination doctrines, and it engages in a form of analysis that would not (or should not) succeed outside the immigration context. There may be some small significance to squeeze out of the Court’s turn to rational basis review; it could have declared that the Constitution did not apply at all. The best that can be said about this analysis is that it implicitly rejects the strong version of the so-called plenary power—that the Constitution does not apply to the political branches’ immigration decisions. It re-enforces one longstanding interpretation of the plenary power—that it is a doctrine of judicial review.[63] In his concurrence, Justice Kennedy makes a perhaps misbegotten attempt to suggest that the proclamation may well have violated the Constitution, but that doctrines of judicial review simply precluded the Court from doing anything about it.[64] But whether we put any stock in the idea of the political branches engaging in self-binding to the requirements of the Constitution,[65] the way the Court employs rational basis review very clearly empowers the president, including a president who has little regard for the Constitution, much less the rights of foreigners.

III. The Future of Presidential Power and Immigrants’ Rights

President Trump’s Proclamation No. 9645 is unprecedented in the scope of its exclusions and in the clarity with which its author spoke about his desire to stop immigration by people of a particular faith.[66] The Court’s opinion in Trump v. Hawaii purported to build on existing doctrines of deferential constitutional review, but it reached a watershed conclusion by declaring legally irrelevant a set of facts that would have doomed similarly drawn distinctions in most any other context not involving immigration and national security. The decision thus raises the obvious question of what’s next for judicial review of immigration policy, particularly at a moment when the president and his administration have adopted a maximalist enforcement policy designed to deter and remove as many immigrants as possible.

The president and his administration have vast authority over immigration law and policy, particularly through the power to enforce the immigration laws. Deference to executive judgments has long played a role in a wide variety of cases implicating the immigration power. But has the Court now effectively authorized executive action that would otherwise be unconstitutional simply because immigration (and national security) are in play? Are all immigration judgments now suddenly insulated from anything but the most credulous judicial review? Not surprisingly, the government has quickly added citations to the rational basis deference provided in Trump v. Hawaii to its filings in other cases challenging executive immigration actions.[67]

The import of Trump v. Hawaii—whether it will have significant repercussions or be folded into business as usual—will be determined in the coming years. But whereas the decision may serve to re-enforce and deepen already existing doctrines that permit the federal government to discriminate against non-citizens, it need not and should not disturb the application of the Due Process Clause and administrative law doctrines to curb arbitrary government power and the abuse of noncitizens under the government’s jurisdiction and control.[68]

A. The President and Discrimination

One very clear factual cum legal distinction that could be used to limit the reach of Trump v. Hawaii is between the the government’s authority at the precipice of entry and the government’s power in relation to immigrants already present in the United States. [69] The highly deferential “facially legitimate and bona fide reason” standard from Mandel applies in cases where the executive has denied a visa to a foreign national in a way that might impinge on the constitutional rights of U.S. persons, not of the foreigner himself, because noncitizens outside the United States are not generally protected by the Constitution.[70] The Mandel standard is further justified because the decision whether to admit someone to the country reflects the ultimate expression of sovereign control. But much of the president’s authority over immigration, and most of the controversies generated by the Trump administration, do not involve foreigners who remain outside the United States and have never stepped foot on U.S. soil. Instead, they implicate noncitizens who have clear or colorable constitutional rights, or at least protected interests, by virtue of their ties to the United States—circumstances for which the Mandel standard is arguably inappropriate.[71]

But when it comes to claims that the government has discriminated against non-citizens in some way, it’s not clear how much work this distinction between immigration control and immigrants rights will do. Long-standing doctrines governing whether and how the federal government can discriminate against non-citizens already significantly empower Congress and the president, without Trump v. Hawaii even in the picture. The political branches’ authority to impose burdens and make judgments on the basis of nationality is well established.[72]

Federal alienage classifications are thus only subject to rational basis review, because it is “a routine and normally legitimate part” of the business of the federal government to draw distinctions on the basis of alienage or citizenhip.[73] Indeed, immigration law relies on nationality classifications; immigration policy is full of examples of nationals from certain countries receiving more or less favorable treatment than others because of particular circumstances tied to their country of origin.[74] Alienage law, or the jurisprudence through which courts have applied equal protection scrutiny to discrimination against non-citizens, is first and foremost a federalism doctrine that limits states’ authority to discriminate against non-citizens through the application of strict scrutiny, while acknowledging the ordinariness of the federal government doing the same.

Sometimes nationality classifications can end up targeting particular groups that are also widely disfavored in society, raising the specter of prejudice or bias by the federal government. In the immediate aftermath of 9/11, for example, the Bush administration adopted a series of programs justified by national security concerns that targeted temporary immigrants from Muslim-majority countries. The National Security Entry-Exit Registration System (NSEERS) required so-called nonimmigrants from mostly Muslim countries to register with the INS when they arrived at the port of entry and even if they were already present in the country[75]—regulatory requirements that were only rescinded in 2016 by the Obama administration.[76]

No equal protection challenge to NSEERS ever succeeded. In part, the cases often came styled as selective prosecution claims, which are notoriously difficult to prove.[77] But courts also cited the facial neutrality of the NSEERS regulation,[78] alongside the federal government’s broad authority to distinguish among foreign nationals, to brush aside discrimination claims.[79] And even if we applied ordinary anti-discrimination law, the disparate impact alone that NSEERS had would not violate anti-discrimination protections.[80] So even if the framework for evaluating nationality classifications draws heavily from deference doctrines made for the immigration or national security contexts, it’s not clear how much of a difference the deference ultimately makes.

But the question of discriminatory motive still lingers in these alienage cases. The presumption of good faith or legitimate motive that courts give to federal classifications on the basis of citizenship does not, in and of itself, require courts to accept those classifications that could be the product of illicit motives. As overbroad as NSEERS turned out to be[81]—it seemed to many, even at the time, a fear-inspired over-reaction to a very real national security threat—no material evidence of discriminatory motive ever appeared in the litigation surrounding it (or at least, the court opinions upholding it never adverted to any such possibility).[82] But if strong evidence of discriminatory motives on the part of President Bush or other key decision-makers behind NSEERS had emerged in the litigation—particularly of the variety and volume that existed in Trump v. Hawaii—those cases could have come out differently. Alienage law would not have required otherwise.

The recent decision of a federal judge in Massachusetts provides an example of how lower courts might still entertain discrimination claims against the federal government exercising its immigration power, by citing factual distinctions with Trump v. Hawaii. The judge in that case rejected the government’s attempt to invoke Trump v. Hawaii to insulate the decision by the Department of Homeland Security (DHS) to rescind the Temorary Protected Status (TPS) of nationals of Honduras, El Salvador, and Haiti. The plaintiffs had alleged that the decision was motivated by racial discrimination, citing infamous statements by President Trump: “why are we having all these people from shithole countries come here?” and “why do we need more Haitians?” who “all have AIDS?”[83] The district court treated Trump v. Hawaii as inapposite, because the case before it involved noncitizens with substantial ties to the U.S. and did not implicate national security.[84] It declared Arlington Heights to provide the appropriate framework for analysis and observed that “applying review under Arlington Heights would not vitiate the deference that courts typically afford the other branches in immigration policy, but would only limit that deference upon a proper showing of unlawful animus on the basis of a protected category.”[85]

But even though this kind of analysis remains available, Trump v. Hawaii makes it questionable whether it will survive on appeal and through the percolation of these claims throughout the federal courts. Trump v. Hawaii did not just apply the Mandel standard to the president’s proclamation. It applied its version of Romer rational basis, too. The outcome shows that the Court, as currently constituted, is willing to look away from discriminatory motives in the application of rational basis review to the federal government’s regulation of immigration and national security.

If we remove the hypothetical case from the precipice of entry, from the border, and posit the interests of immigrants already present and with lawful status, will the Court entertain mixed motive analysis? [86] Will it step outside of the typical deference given to classifications based on nationality, and outside the parameters of Trump v. Hawaii, which calls for upholding policies even in the face of evidence of discriminatory motive? As a principled legal matter, it’s hard to see how it could, unless the alienage classifications at issue have an attenuated connection to national security. TPS falls less clearly in the national security bucket than the Trump entry-ban, but some courts may begin to blend security with public order more generally.

B. The Due Process Clause and Government Coercion

The distinction between immigration control and the rights of immigrants also has limited value when the controversies involve border enforcement, where the government can claim heightened sovereighty and security concerns. Especially when it comes to those who have entered illegally, the imperatives of immigration control could in theory and practice swallow immigrants’ rights.[87] Indeed, government lawyers long before the Trump administration have urged the position that certain people who appear at the border—both asylum seekers and unlawful entrants, particularly those with no ties to the United States—are constructively outside the United States.

And so something more than a distinction between sovereign control and ordinary regulation is required to perpetuate meaningful judicial scrutiny of executive immigration actions. Fortunately, existing case law, including canonical dissents, point to a different factor that distinguishes immigration enforcement, including border enforcement, from exclusion decisions of the sort at issue in Trump v. Hawaii. Rather than think of the need for sovereign control as the trigger for the type of judicial review on offer in Trump v. Hawaii, the inquiry should turn on whether coercive authority has been exercised over the non-citizen. The distinction would be between the abstract decisions to exclude hypothetical future entrants in Trump v. Hawaii and concrete instances of the government’s direct control or power over the person. The scrutiny of such control should extend regardless of whether the person has been present in the U.S. for an extended period or is a recent (and unlawful) border crosser.[88] And it should encompass government actions such as rescission of status, arrest, deportation, and especially custody and detention.[89]

Limits on the government’s coercive power in immigration long have been understood to come from the Fifth Amendment’s Due Process Clause, which the Court has held since the turn of the twentieth century applies to all persons, even recent clandestine entrants.[90] The Court does not address and certainly does not purport to disturb these precedents in Trump v. Hawaii. That case involved the rights of U.S. persons, not any cognizable rights of immigrants. More to the point, for cases grounded in the Due Process Clause, the form of rational basis review applied in Trump v. Hawaii simply is not apposite. The standard would make no sense analytically, because the government’s motive has no bearing on whether the Due Process Clause has been violated.

Of course, the possibility of due process review does not mean that the government’s interests couldn’t outweigh the constitutional violation, or that courts would not give great deference to the interests the government puts forward, refusing to scrutinize its claims of national security necessity. But the application of a form of rational basis that permits blatantly unconstitutional conduct because it was arguably well intentioned, or undertaken in pursuit of a plausible governmental objective that in and of itself would be legitimate, would reflect a significant stretch of Trump v. Hawaii. The lower courts certainly need not acquiesce in such an approach unless and until the Supreme Court has made it clear that the Due Process Clause really is that thin.

As a procedural doctrine, due process is, of course, a relative concept that calls for weighing the extent of a noncitizen’s liberty interest against the government’s needs.[91] When it comes to the core enforcement question—whether someone is to be removed or excluded—both the liberty interest  (in being in the United States) and the government interest (in removing non-citizens the law declares have no entitlement to be in the country) can be weighty, but variable. Both will depend to an extent on legal status, the extent of ties to the country, and the rationales in particular cases for removal.[92]

The hallmarks of due process, namely notice and an opportunity to be heard before an adjudicator (if not a court), have long been recognized as attaching as a matter of constitutional law, as well as in statute and regulation, at least for long-term residents.[93] The Supreme Court made clear in the 1980s, for example, that a returning lawful permanent resident was entitled to more than a cursory consideration of her claim against deportation. In fact, this basic principle led the Ninth Circuit panel that considered the first iteration of the Trump entry-ban to question its constitutionality, which in turn pushed the administration to make clear that its orders did not apply to this category of non-citizens.[94]

But within the confines of ordinary procedural due process, even cursory removal processes may suffice. The government, for instance, has plenty of room to dispense quickly with the removal of non-citizens with no ties to the United States, whose liberty interests in remaining are thin to non-existent (except in the vital case of the refugee).[95] No legal challenge has succeeded against the expedited removal procedure that Congress authorized in 1996, to give immigration officers the power to order a non-citizen removed if the officer has determined the non-citizen is inadmissible, without further hearing or review, unless the person expresses an intent to apply for asylum.[96] To be sure, challenges have foundered because Congress has made judicial review exceedingly difficult. But the bottom line is that the government’s efforts over the last two decades to remove people apprehended at the border quickly and without access to courts only presents a problem under existing law (statutory, regulatory, and international) if such processes thwart the effort to claim asylum.

The extent of this last point may soon come in for further development, however. The executive has yet to make full use of the expedited removal power Congress delegated to it. Congress authorized expedited removal for those inadmissible aliens who could not prove that they had been continuously in the United States for two years, and so the government in theory could deploy the procedure across the United States. The Clinton, Bush, and Obama administrations applied expedited removal only to new arrivals or recent border crossers, either at the ports of entry or within 100 miles of the border.[97] The Trump administration, however, has promised to use its statutory authorities to their full effect, and the complete use of the power of expedited review could generate new questions under the Due Process Clause, provided litigants can navigate the limits on judicial review.[98]

On the merits of the constitutional claim, a challenge to the expansion of the procedure might argue that, as expedited removal expands into the interior, the risk that the government might erroneously deprive a non-citizen of a weighty liberty interest—namely her right to live in the U.S.—will grow. As more settled immigrants enter the government’s purview, trial-type procedures become more necessary. The government’s interests in policing the border and expelling non-citizens before they develop ties also wane.[99] Trump v. Hawaii does not provide any reason for lower courts to apply anything other than this ordinary due process analysis to questions that might arise involving further contractions of procedural safeguards governing deporation.

More important, even if the Due Process Clause does not require extensive trial-type proceedings for all forms of removal, in its substantive form, the Clause can operate to prevent abusive treatment. As Justice Breyer put it in his dissent from Jennings v. Rodriguez this term, when addressing the Constitution’s application to recent border crossers: “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?”[100] Here he echoes Justice Jackson’s canonical dissent in Shaughnessy v. United States ex rel. Mezei—a case that represented a highwater mark for national security deference to the government. Justice Jackson responded to the majority’s acquiescence in the government’s decision to deny a non-citizen a hearing before ordering her exclusion at the border with a warning that the Due Process Clause should be understood as restraining the government from extreme proceedings, blending the procedural and substantive dimensions of the clause:

[Due process] is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice. . . . Does the power to exclude mean that exclusion may be continued or effectuated by any means which happen to seem appropriate to the authorities? It would effectuate his exclusion to eject him bodily into the sea or to set him adrift in a rowboat.[101]

Though these powerful condemnations of cruelty are embodied in dissents, they do reflect deeply rooted constitutional expectations and values, as Justice Breyer lays out in his Jennings dissent.[102] Before Trump v. Hawaii, and in response to the Trump administration’s enforcement policies, the lower courts reflected these same intuitions—that the Due Process Clause stands as a bulwark against governmental abuse. District judges showed their willingness to label actions taken by the government in pursuit of tough enforcement as violations of substantive rights, even going so far as to label some government policies—separating parents from children at the border, for example—as shocking the conscience.[103]

Nothing in Trump v. Hawaii necessitates a recalibration or retreat from this form of review.[104] Even if courts in the aftermath of the decision choose to be credulous about the government’s reasons for its enforcement policies—e.g., if they choose to credit the administration’s view that separating families will deter asylum seekers, despite powerful evidence to the contrary[105]—marginal deterrence benefits would hardly seem to justify strikingly abusive behavior. It’s hard to imagine the courts as a holistic institution concluding that treatment that shocks the conscience (or is just plain abusive) cannot be remedied by courts because the government also had a facially legitimate and bona fide reason for the conduct, namely deterring illegal immigration.[106] That intention could not, even in theory, erase the execrable treatment as it erased the discriminatory motive under the Court’s analytical framework in Trump v. Hawaii. Again, a court could prove Justice Jackson wrong. It could conclude that the government’s interest in deterrence justifies the constitutional violation, much as the Supreme Court concluded that national-security interests justified President Roosevelt’s facial race discrimination in Korematsu. But to do so would require a substantial step beyond Trump v. Hawaii.

We may be heading toward a high-level reckoning on the reach of the Due Process Clause in immigration enforcement. This term, in Jennings, the Supreme Court reversed a Ninth Circuit decision that had read a congressional statute authorizing mandatory detention for certain classes of non-citizens to require individualized bond hearings after six months of detention, in order to avoid constitutional concerns under the Due Process Clause. Detention implicates a core liberty interest that the courts, even in immigration, have been careful to protect. But they have done so largely by applying the canon of constitutional avoidance to questionable congressional statutes.[107] In Jennings, the Court rejected one such interpretation by the lower courts as “linguistic trauma,” squarely returning to litigate the constitutional question—of the extent to which the Constitution limits the detention of non-citizens.

Justice Breyer’s dissent in Jennings, quoted above, shows the way for the Court to limit mandatory detention and require individualized hearings to assess flight risk and dangerousness, grounded in deep constitutional history, complete with links to Blackstone as well as contemporary jurisprudence. But what kind of weight will the Court as currently constituted give the government’s interest in mandatory detention, and will its recommitment to national security deference in Trump v. Hawaii re-emerge when this constitutional challenge inevitably comes back to the Court? Will the Court go so far as to credit the government’s claim that certain non-citizens, namely first-time entrants, in fact have no due process rights at all?

Justices skeptical of constitutional claims against detention statutes have not needed a holding as sweeping as Trump v. Hawaii to acquiesce in the decisions of the political branches to make detention mandatory for certain noncitizens facing deportation.[108] But in recent decades, the Court as a whole has at least thrown safety valves into its opinions that otherwise uphold detention policies, perhaps in order to leave room for invalidation of the truly terrible.[109] With the Court’s composition and identity in flux, it is difficult to predict exactly how far respect for the government in immigration and national security will extend. But the operation of the Due Process Clause to prevent arbitrary government action has a long pedigree with many adherents across the ideological spectrum.[110] At the very least, the lower courts can tee up the issue in a way that demonstrates the essentiality of this basic protection to our form of constitutional, limited government.

* * *

Like many of my colleagues in the legal academy, when I teach the Chinese Exclusion cases in my immigration law courses, I pose a hypothetical to the students. If Congress were to adopt a law that resembled the Chinese Exclusion Acts of the late nineteenth century—say a law that barred the entry of immigrants from Muslim-majority countries—would a majority of today’s justices follow their predecessors and decide that it was beyond the Court’s purview to second-guess the judgments of the political branches? To punctuate the discussion that ensues, I typically have made two observations. First, the political branches have internalized non-discrimination norms that would make blanket exclusions on the basis of race, religion, and even nationality unthinkable. Second, the modern court would be writing on a completely different slate than the justices of the late nineteenth century, when segregation was still constitutional. The result of the equal protection and civil rights revolutions of the twentieth century, and the concomitant demise of race-based immigration restrictions, would lead the justices to limit any exercise of the immigration power that embodied the sort of discriminatory state action that would be clearly unconstitutional in other contexts.

After Trump v. Hawaii, confidence in neither of these observations can be justified; they will seem highly debatable at best and laughable to many. In the face of a barrage of presidential statements that a reasonable observer would have interpreted as reflecting anti-Muslim animus, the Supreme Court concluded that it could not stop the president’s indefinite exclusion of most nationals from five Muslim-majority countries. Rather than dispute the evidence, or call for more robust fact-finding to get to the bottom of the motivation behind President Trump’s entry-ban proclamation, the Court credited the facially legitimate justification proferred by the government, because the protection of our borders and the nation’s security required its acceptance.

It is almost beside the point whether the world-wide review and its results were genuine national security exercises or after-the-fact veneers to make raw discrimination fit within the confines of accepted presidential behavior. Even if the former, the Court’s decision is still best read as permitting state action motivated by animus to survive judicial review because of the delicacies of the presidential prerogatives at issue. Though the trappings of deference have been woven into the practices of constitutional review of the federal government’s regulation of immigrants and immigration, the Court’s willingness to legally erase discriminatory motives marks a new moment.

Whether this departure will infect judicial review of other sorts of immigration and national security policies remains to be seen. But the peculiarities of motive analysis that drive Trump v. Hawaii will be inapposite in other types of cases, most importantly in the application of the Due Process Clause to various forms of coercion over noncitizens within the jurisdiction and control of the U.S. government, especially border enforcement and detention policy. Because Trump v. Hawaii does not even purport to address the complex and still developing jurisprudence governing the laws that authorize coercion, as well as the executive practices that implement that authority on a day-to-day basis, the lower courts need not feel constrained by the Supreme Court’s latest word on the immigration power. Of course, existing jurisprudence provides constraint enough over judicial review. More ominously, the Supreme Court’s de facto willingness to tolerate constitutionally offensive conduct for fear of trenching upon presidential prerogatives may well re-emerge if and when the Court takes up the latest iteration of the Jennings detention case, or the litigation challenging the Trump family-separation policies. The legal and moral stakes could not be greater, but Trump v. Hawaii should be far from the final word.


* Cristina M. Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. The author could not have completed this essay without the outstanding research support of Megan Yan and Alex Mechanick, and she is extremely grateful for their rapid and excellent work.

[1] Trump v. Hawaii, 138 S. Ct. 2392, 2433 (2018) (Sotomayor, J., dissenting).

[2] Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017).

[3] For a deconstruction of the Trump administration’s failures on this front, both with respect to the entry ban and in other contexts, see W. Neil Eggleston & Amanda Elbogen, The Trump Administration and the Breakdown of Intra-Executive Legal Process, 127 Yale L.J.F. 825, 829-35 (2018), available at http://www.yalelawjournal.org/forum/the-trump-administration-and-the-breakdown-of-intra-executive-legal-process. As they describe, the executive order “plunged the country into temporary chaos while cabinet members reportedly learned through the media that the new policy had become effective.” Id. at 826.

[4] Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (issuing preliminary injunction).

[5] Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (denying government’s emergency motion for stay, leaving injunction in place).

[6] Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017). The second order was narrower in scope; it dropped Iraq from the list of countries to which it applied and excepted lawful permanent residents and diplomatic visas. Id. §§ 1(g), 3. The order made its reasoning explicit: “In light of the conditions in these six countries, until the assessment . . . is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.” Id. § 1(f). Before the order could go into effect, district courts in Hawaii and Maryland enjoined it. See Hawai’i v. Trump, 241 F. Supp. 3d 1119 (D. Haw. 2017); Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017). On appeal, the Ninth and Fourth Circuits affirmed the injunctions. See Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017). The Supreme Court issued a partial stay, allowing the Order to go into effect except for foreign nationals with “bona fide relationship[s] with a person or entity in the United States.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017). However, both cases were subsequently found to be moot after provisions of the order expired and the Supreme Court vacated and remanded the decisions. Trump v. Hawaii, 138 S. Ct. 377 (2017) (mem.); Trump v. Int’l Refugee Assistance Project, 138 S. Ct. 353 (2017) (mem.).

[7] Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017). The proclamation banned nationals of the listed states from entering the country on certain types of visas. Chad, Libya, and Yemen were labeled counterterrosim partners with inadequate information-sharing practices; for nationals from those countries, immigrant visas and nonimmigrant business or tourist visas were suspended. Id. §§ 2(a), (c), (g). Iran, North Korea, and Syria “regularly fail[ed] to cooperate” or “[did] not cooperate” in identifying security risks. All immigrant and nonimmigrant entry from these countries was suspended, except for Iranians entering on nonimmigrant student and exchange visas. Id. §§ 2(b), (d), (e). For Venezuela, the proclamation suspended entry of certain government officials and their immediate family members on nonimmigrant business or tourist visas. Id. § 2(f)(ii). And for Somalia, the proclamation suspended entry of nationals seeking immigrant visas and required additional scrutiny of nonimmigrant visas. Id. § 2(h)(ii). The order also contained a case-by-case waiver provision. Id. § 3(c)(i).

[8] See, e.g., Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017) (enjoining the second executive order on Establishment Clause grounds); Hawai’i v. Trump, 265 F. Supp. 3d 1140 (D. Haw. 2017) (enjoining the presidential proclamation on statutory grounds, for exceeding authority under § 1182(f) and violating § 1152(a)). The district court in Washington v. Trump enjoined the section of the first executive order that halted refugee admissions, as did the Hawaii district court. Washington, 2017 WL 462040. In October 2017, as the third order was being litigated, the administration released an executive order resuming refugee admissions, thereby mooting the issue. Exec. Order No. 13,815, 82 Fed. Reg. 50,055 (Oct. 27, 2017). Ultimately, the INA delegates to the president the power to determine the number of refugees admitted each year, and a statutory challenge to a decision to eliminate admissions would have faced an uphill battle.

[9] Trump v. Hawaii, 138 S. Ct. at 2392.

[10] Korematsu v. U.S., 323 U.S. 214 (1944). For representative examples of the debate, see Joseph Fishkin, Why Was Korematsu Wrong?, Balkinization (June 26, 2018), https://balkin.blogspot.com/2018/06/why-was-korematsu-wrong.html; Aziz Huq, The Travel Ban Decision Echoes Some of the Worst Supreme Court Decisions in History, Vox (June 26, 2018), https://www.vox.com/the-big-idea/2018/6/26/17507014/travel-ban-internment-camp-supreme-court-korematsu-muslim-history; Richard Primus, The Travel Ban and Inter-Branch Conflict, Take Care (June 26, 2018), https://takecareblog.com/blog/the-travel-ban-and-inter-branch-conflict.

[11] As Justice Sotomayor noted, on the campaign trail, President Trump called for “a total and complete shutdown of Muslims entering the United States” and stated that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” As he signed the first executive order, he read the title – Protecting the Nation from Foreign Terrorist Entry into the United States – and stated “We all know what that means.” Trump v. Hawaii, 138 S. Ct. at 2435-38. (Sotomayor, J., dissenting).

[12] See, e.g., Arizona v. United States, 567 U.S. 387 (2012); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012).

[13] See, e.g., Brief for Petitioner at 27-28, Zadvydas v. Davis, 533 U.S. 678 (2001) (No. 99-7791), 2000 WL 33709238 (arguing against statutory construction allowing indefinite detention as such a reading would “raise serious constitutional questions”). The Court ultimately accepted this argument, reading an implicit limitation to post-removal-period detention to avoid a due process problem. Zadvydas, 533 U.S. at 689-90. See also Brief for Respondents at 33, Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (No. 15-1204), 2016 WL 6123731 (“The Court need not decide the constitutional issues, because a ‘fairly possible’ construction of the detention statutes is available that avoids these serious constitutional concerns.”).

[14] 8 U.S.C. § 1182(f).

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, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Id.

[15] Respondents made such an argument in briefing, echoing the Ninth Circuit decision the Court ultimately reversed and remanded. Brief for Respondents at 30-32, 36-37, 45-50, Trump v. Hawaii, 138 S.Ct. 2392 (2018) (No.17-965), 2018 WL 1468304; Hawaii v. Trump, 878 F.3d 662, 687 (9th Cir. 2017) (concluding that indefinite suspension of entry “nullifies . . . existing statutory scheme”). See also Peter Margulies, Trump’s Travel Ban at the Supreme Court: Deference Joined by Nudges Toward Civility, Lawfare (June 26, 2018), https://www.lawfareblog.com/trumps-travel-ban-supreme-court-deference-joined-nudges-toward-civility (“Unfortunately, the majority’s broad view of 1182(f)’s delegation missed its more tailored role in the INA’s overall plan.”); Peter Margulies, The New Travel Ban: Undermining the Immigration and Nationality Act, Lawfare (Sept. 25, 2017), https://www.lawfareblog.com/new-travel-ban-undermining-immigration-and-nationality-act.

[16] 98 Cong. Rec. 4304 (1952) (statement of Rep. Celler). When another congressman interrupted, to remind Celler that the provision permits exclusion only when entry would be “detrimental to the interest of the United States,” Celler responded that this language was no safeguard, since the decision of whether entry would be detrimental to the United States was left entirely to the president. Id. at 4305.

[17] Trump v. Hawaii, 138 S. Ct. at 2409.

[18] See Eggleston & Elbogan, supra note 3 at 830 (“Neither the White House nor the Department of Justice appears to have asked career lawyers within the Department of State, the Department of Defense, the Department of Homeland Security, or any other agency to review EO-1 before it was issued.”).

[19] Trump v. Hawaii, 138 S. Ct. at 2412. The second statutory argument the Court rejects should give us more pause. In 1965, Congress amended the INA to provide 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.”  8 U.S.C. § 1152(a)(1). The Court is correct that this provision clearly applies only to noncitizens seeking visas for lawful permanent residency, because in immigration parlance, all other would-be immigrants (students, tourists, temporary workers) are “nonimmigrants.” Trump v. Hawaii, 138 S. Ct. at 2414-15. Even so, the Court’s broader rejection of the claim—that Hawaii confused visa issuance (which consular officials do) and admissibility determinations (what the president made under Section 212(f))—is not obvious and reads like a legalistic attempt to draw a fine but not-so-meaningful distinction. On this question, compare Josh Blackman, The Legality of the 3/6/17 Executive Order, Part I: The Statutory and Separation of Powers Analyses, Lawfare Blog (Mar. 11, 2017, 9:47 PM), https://www.lawfareblog.com/legality-3617-executive-order-part-i-statutory-and-separation-powers-analyses (distinguishing between entry and visas), with Ian Samuel, “See the Sights of Terminal 4!” A Reply to Section 1182(f) Enthusiasts, 36 Yale J. on Reg.: Notice & Comment (Feb. 11, 2017), available at http://yalejreg.com/nc/see-the-sights-of-terminal-4-a-reply-to-section-1182f-enthusiasts-by-ian-samuel/ (arguing that the distinction is illogical).

[20] Texas v. United States, 809 F.3d 134, 179 (5th Cir. 2015) (holding that the INA “expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present” which does not include those “who would be eligible for lawful presence under DAPA were it not enjoined”), aff’d by an evenly divided court, United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam). The Fifth Circuit’s ruling enjoined DAPA as well as the expansion of a 2012 program—Deferred Action for Childhood Arrivals (DACA). Several legal challenges to DACA during the Obama years failed. See, e.g., Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) (holding that ICE employee must bring claim through processes for adjudicating civil service disputes); Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) (finding that sheriff of Maricopa County lacked standing to challenge DACA), cert. denied, 136 S. Ct. 1250 (2016). President Trump has attempted to rescind the program, and though he has been stymied by the courts thus far, Texas, among others, has filed suit in the same district court that enjoined DAPA, arguing that DACA exceeded the president’s authority, thus setting up a clash for the Supreme Court to resolve eventually. See Texas v. United States, No. 18-00068 (S.D. Tex. May 1, 2018).

[21] Trump v. Hawaii, 138 S. Ct. at 2410.

[22] The Court does address Hawaii’s claims that the legislative history of § 212(f), coupled with past executive practice, which involved narrower applications of § 212(f), bolstered the state’s position, but it finds each of these reasons wanting. The Court’s exploration of past executive practice is particularly instructive, because it underscores how past uses of the suspension power have been largely without standards; presidents have invoked § 212(f) to serve not just national security goals, but also their own policy and diplomatic goals. Trump v. Hawaii, 138 S. Ct. at 2409-10.

[23] See Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, Chapter 2 (forthcoming Oxford University Press 2019).

[24] 8 U.S.C. § 1182(d)(5)(A).

The Attorney General may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

Id.

[25] Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law Redux, 125 Yale L.J. 104, 158-59 (2015).

[26] Id. at 158-59.

[27] Id. at 159.

[28] Trump v. Hawaii, 138 S. Ct. at 2421. (“But we cannot substitute our own assessment for the Executive's predictive judgments on [national security] matters, all of which ‘are delicate, complex, and involve large elements of prophecy.’” (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948))).

[29] A decision striking down the proclamation could have given future presidents and officials the incentive to “hide” any prejudicial or biased reasons for seeking particular immigration restrictions, but that is just a feature of intent analysis. This incentive is part of what makes it so hard today to prove that facially neutral laws have invidious intent. That clear statements of discriminatory intent are so rare is precisely what makes President Trump’s repeated utterances all the more extraordinary and worth calling out.

[30] Trump v. Hawaii, 138 S. Ct. at 2402.

[31] Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972) (limiting review of attorney general’s denial of admission where a “facially legitimate and bona fide reason” for action existed). In Kerry v. Din, in which the Justices considered whether the Due Process Clause had been violated by the cursory denial of a visa to the spouse of a U.S. citizens on terrorism-related grounds, Justice Kennedy in concurrence deploys the standard similarly, emphasizing that it has special import in immigration cases that also implicate national security. He declined to decide whether a right to a protected liberty interest (in family unity across the border) existed in the case. Instead, he relied on Mandel’s “facially legitimate and bona fide” standard to find that any due process interests were met when the government provided notice of its denial of admission under the relevant INA provision, as the Court’s inquiry into the attorney general’s visa decision was limited. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring). The plurality, by contrast, held that denying visa to the spouse of a U.S. citizen did not violate the Due Process Clause. Id. at 2138 (plurality opinion).

[32] It can be unproductive, even pointless, to compare the ins and outs of different deferential standards of review, but it’s ultimately not clear that the Mandel standard is meaningfully different from the rational basis review the courts apply when assessing classifications on the basis of nationality or alienage, except that one applies to exclusion and the other applies to the way the federal government discriminates against immigrants already present in the United States. The rhetoric about sovereign authority may be more muscular in Mandel­-type cases, and the rational basis standard may purport to look beyond facial neutrality to weigh relative government and individual interests, but both standards embody considerable deference to the federal government’s immigration judgments and presume good faith in the enactment of nationality classifications. It remains to be seen, however, how the federal courts would deal with policies targeting immigrants in the United States supported by the same considerable evidence of animus that existed in Trump v. Hawaii, i.e., whether the rational basis standard would permit recognition of discriminatory motive to override the immigration interest. For further discussion of this point, see Part III of this essay.

[33] Trump v. Hawaii, 138 S. Ct. at 2409.

[34] Id. at 2418-20. (quoting Mathews v. Diaz, 426 U.S. 67, 81-82 (1976)) (“The upshot of our cases in this context is clear: ‘Any rule of constitutional law that would inhibit the flexibility’ of the President ‘to respond to changing world conditions should be adopted only with the greatest caution,’ and our inquiry into matters of entry and national security is highly constrained.”).

[35] Justice Breyer, joined by Justice Kagan, sought more evidence to help determine whether the president had bad motives, namely by probing whether the waivers included in the proclamation, which would enable case-by-case security assessments, were genuine limits on the order or just makeweights designed to give credence to the national security concerns. As Justice Breyer noted in his dissent, some evidence—including a sworn affidavit from a consular official and a report on the U.S. Embassy in Djibouti—suggested that the waiver process was “window dressing.” Trump v. Hawaii, 138 S. Ct. at 2432-33 (Breyer, J., dissenting). On July 29, 2018, a class action complaint was filed against DHS and related agencies for “failure to provide a meaningful, orderly, and accessible [waiver] process,” arguing violations of the APA, the INA, and due process rights. First Amended Complaint, Emami v. Nielsen, No. 3:18-cv-01587, Dckt. No. 34, at *4 (N.D. Cal. July 29, 2018).

[36] Adam Cox, Ryan Goodman, & Cristina Rodriguez, The Radical Supreme Court Travel Ban Opinion – But Why It Might Not Apply to Other Immigrants’ Rights Cases, Just Security (June 27, 2018), https://www.justsecurity.org/58510/radical-supreme-court-travel-ban-opinion-but-apply-immigrants-rights-cases/ (describing the Court as “essentially admit[ting] that the policy could very well be based on unconstitutional grounds, but conclud[ing] that this fact is irrelevant so long as a separate and additional non-illicit reason for the policy is available.”). For an argument that takes this view even further, see Aziz Huq, The Future of Constitutional Discrimination Law After Hawai’i v. Trump, Take Care (June 26, 2018), https://takecareblog.com/blog/the-future-of-constitutional-discrimination-law-after-hawai-i-v-trump (characterizing the opinion as affirming the view that “[s]o long as the government asserts some kind of public security justification when it wishes to coerce or confine, a litigant alleging bias must lose.”).

[37] Cox, Goodman, & Rodriguez, supra note 36.

[38] Cox, Goodman, & Rodriguez, supra note 36; see also Adam Cox, Why a Muslim Ban is Likely to Be Held Unconstitutional: The Myth of Unconstrained Immigration Power, Just Security (Jan. 30, 2017), https://www.justsecurity.org/36988/muslim-ban-held-unconstitutional-myth-unconstrained-immigration-power/ (“The Supreme Court has never upheld an immigration policy that openly discriminated on the basis of race or religion during a period of constitutional history when such a policy would have been clearly unconstitutional in the domestic context.”).

[39] Cf. McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005) (anti-discrimination component of Establishment Clause); Larson v. Valente, 456 U.S. 228 (1982) (same).

[40] Trump v. Hawaii, 138 S. Ct. at 2423.

[41] Id. at 2442 (Sotomayor, J., dissenting) (“Given the overwhelming record evidence of anti-Muslim animus, it simply cannot be said that the Proclamation has a legitimate basis.”).

[42] See, e.g., Eugene Kontorovich, The 9th Circuit’s Dangerous and Unprecedented Use of Campaign Statements to Block Presidential Policy, Wash. Post (Feb. 9, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/09/the-9th-circuits-dangerous-and-unprecedented-use-of-campaign-statements-to-block-presidential-policy/ (“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.”); see also Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Tex. L. Rev. 71, 129, 138 (2017) (detailing categories of presidential speech and arguing that courts generally should not rely on statements “offered in the spirit of advocacy, persuasion, or pure politics” except in a subcategory of cases where presidential speech provides evidence of a “constitutionally impermissible purpose”).

[43] Trump v. Hawaii, 138 S. Ct. at 2435 (Sotomayor, J., dissenting) (“The full record paints a far more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.”).

[44] Id. at 2418 (“[T]he issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core executive responsibility.”).

[45] Id. at 2420.

[46] Id. at 2421.

[47] Doctrinally, these cases apply to equal protection claims, not ones arising under the Establishment Clause. But there is no apparent reason why the logic of the former would not apply to the latter—why religious-based animus should require one test of causation, whereas race-based animus requires another.

[48] Vill. of Arlington Heights v. Metropo. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).

[49] Hunter v. Underwood, 471 U.S. 222, 228 (1985) (striking down Alabama law disenfranchising felons and holding that “[o]nce racial discrimination is shown to have been a ‘substantial’ or ‘motivating’ factors behind enactment of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor,” a standard Alabama could not meet); cf. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977) (“In other areas of constitutional law, this Court has found it necessary to formulate a test of causation which distinguishes between a result caused by a constitutional violation and one not so caused.”).

[50] Jed Shugerman, A New Korematsu: The Travel Ban Ruling Will be the Roberts Court’s Shameful Legacy, Slate (June 26, 2018, 3:42 PM), https://slate.com/news-and-politics/2018/06/trump-v-hawaii-the-travel-ban-ruling-will-be-the-roberts-courts-shameful-legacy.html (“The justices had asked in oral arguments whether the travel ban’s waiver program—the existence of which the DOJ relied on to argue that the ban was a fair and standard presidential directive—was merely ‘window dressing.’ Statistics and individual cases of denials had already suggested that the waiver process may be a sham. As Jeremy Stahl has reported, a former consular officer said in a sworn affidavit that he had no discretion to actually grant waivers. Another consular officer said ‘the waiver process is fraud’ and has ‘no rational basis.’ It’s fair to ask whether [Solicitor General Noel] Francisco misrepresented the waiver process.”).

[51] Perhaps the Establishment Clause context accounts for this elision, though those precedents raise similar questions and put the government to similar proof requirements by looking at the actual context of the decision as opposed to any facially plausible explanation. See McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005) (“When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality.”); Trump v. Hawaii, 138 S. Ct. 2392, 2434 (2018) (Sotomayor, J., dissenting)  (“[T]o determine whether plaintiffs have proved an Establishment Clause violation, the Court asks whether a reasonable observer would view the government action as enacted for the purpose of disfavoring a religion.”(quoting McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005))).

[52] Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973).

[53] Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).

[54] Romer v. Evans, 517 U.S. 620 (1996).

[55] Trump v. Hawaii, 138 S. Ct. at 2420 (quoting Moreno, 413 U.S. at 534).

[56] Id. at 2421.

[57] Id. at 2441  (Sotomayor, J., dissenting) (quoting Evans, 517 U. S. at 632, 635); see also Cleburne Living Center, Inc., 473 U. S. at 448 (recognizing that classifications predicated on discriminatory animus can never be legitimate because the government has no legitimate interest in exploiting “mere negative attitudes, or fear” toward a disfavored group).

[58] Perhaps this is the only way to address the causation questions raised by intent analysis. Admitting that a legitimate national security purpose exists is tantamount to concluding that the government action would have been adopted even absent the discriminatory motive. But a reasonable observer knows, according to Justice Sotomayor, that the administration issued its proclamation only because President Trump promised some sort of Muslim ban. Indeed, in any complex institution, it will be almost impossible to eliminate any plausible motive or prove the negative—that absent the malign motive, the government would have done the same thing.

[59] For the scholarly debate on the question of whether animus must constitute the sole reason, a primary reason, or simply one reason to justify striking down a law under rational basis, as applied in Romer and Windsor, see, for example, Susannah W. Pollvogt, Windsor, Animus, and the Future of Marriage Equality, 113 Colum. L. Rev. Sidebar 204, 213 (2013) (arguing that Justice Kennedy’s opinion in Windsor treated animus as a silver bullet that “discredited any purported justifications” and that Chief Justice Roberts’s dissent suggests that the presence of animus is not enough to invalidate a government action); Dale Carpenter, Windsor Products: Equal Protection from Animus, 2013 Sup. Ct. Rev. 183, 213, 232 (concluding that the Supreme Court left open in Windsor whether animus must be a but-for cause or only part of the purpose of the law, to justify invalidation and describing the “tainting” effect of animus); Cass Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 62 (1996) (noting that there were “poorly fitting but probably rational justifications” in Cleburne, Moreno, and Romer, suggesting that the Court was engaged in more searching analysis); and Katie R. Eyer, The Canon of Rational Basis Review, 93 Notre Dame L. Rev. 1317, 1363 (2018) (reading Romer as not suggesting that the Court was required to find animus to conduct searching review).

[60] United States v. Windsor, 570 U.S. 744, 775 (2013) (emphasis added).

[61] Trump v. Hawaii, 138 S. Ct. at 2429 (Breyer, J., dissenting).

[62] Id. (“Members of the Court principally disagree about . . . whether or the extent to which religious animus played a significant role in the Proclamation’s promulgation or content. . . . [T]he Proclamation’s elaborate system of exemptions and waivers can and should help us answer this question.”); id. at 2430 (“[I]f 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.”). A potential virtue of this approach is that it doesn’t require second-guessing the executive’s national security judgments—the bogeyman of judicial review—at least not to the same extent as the Sotomayor approach. The inquiry into whether the waivers were a meaningful limitation on the order would be a factual one, and if they weren’t, that could constitute evidence of motivation to keep Muslims out of the country, regardless of whether the government discovered reason to question the reliability of immigration information coming from the targeted countries. Cf. Noah Feldman, Take Trump’s Travel Ban Back to Court, Bloomberg (June 29, 2018, 12:26 PM), https://www.bloomberg.com/view/articles/2018-06-29/take-trump-s-travel-ban-back-to-court (describing an exchange with Owen Fiss over whether, even under the Trump v. Hawaii opinion, plaintiffs “should go back to court and seek a trial on Trump’s bias” given a different standard of proof of bias and the opportunity to seek discovery).

[63] Gerald L. Neuman, Strangers to the Constitution 118-38 (2010).

[64] Trump v. Hawaii, 138 S. Ct. at 2424. (Kennedy, J., concurring) (“There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. . . . It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs.”).

[65] Marty Lederman, Contrary to Popular Belief, the Court Did Not Hold that the Travel Ban is Lawful—Anything But, Just Security (July 2, 2018), https://www.justsecurity.org/58807/contrary-popular-belief-court-hold-travel-ban-lawful-anything-but-which-ruling-justice-kennedys-deference-presidents-enforcement-ban-indefensible/.

[66] For a discussion of the more limited ways in which presidents have used § 212(f) in the past, see Brief for Respondents at 40-41, Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965), 2018 WL 1468304, at *40-41.

[67] See, e.g., Reply in Support of Defendants’ Motion to Dismiss, Centro Presente v. Dep’t of Homeland Sec., No. CV 18-10340, at *5-6 (D. Mass. June 26, 2018), available at https://static.reuters.com/resources/media/editorial/20180727/centrovtrump--mtdreply.pdf (amending motion to dismiss challenge to decision to rescind Temporary Protected Status of noncitizens from Haiti, El Salvador, and Honduras).

[68] I discuss due process limits in greater detail below. For an example of the courts’ turn to administrative law to restrain executive immigration policies, consider the litigation surrounding President Obama’s deferred action policies and the Trump administration’s thus far unsuccessful effort to rescind Deferred Action for Childhood Arrivals.

[69] One way of understanding the legal significance of this descriptive difference is with reference to the clear distinction courts make between the federal government’s authority over immigration control and the general regulation of immigrants. The classic statement of this distinction comes from DeCanas v. Bica, where the distinction had federalism implications: the Court said that not every measure that touches on immigration is a regulation of immigrant movement and upheld a California law that regulated the employment of unauthorized immigrants. See DeCanas v. Bica, 424 U.S. 351, 355 (1976) (“But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.”).

[70] Cf. Boumediene v. Bush, 553 U.S. 723, 755 (2008) (“[W]e accept the Government's position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. . . [H]owever, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.”).

[71] The Ninth Circuit’s injunction of the first of the entry-bans was predicated in large part on the constitutional concerns it raised by virtue of seeming to apply to lawful permanent residents who were also nationals of the listed countries. Washington v. Trump, 847 F.3d 1151, 1164-66 (9th Cir. 2017) (per curiam), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017).

[72] See, e.g., Mathews v. Diaz, 426 U.S. 67, 85 (1976).

[73] Id.

[74] For example, the Visa Waiver program extends more favorable treatment in immigration screening to nationals from certain (mostly advanced industrialized) countries than others. Temporary Protected Status (TPS), which gives a form of status to persons fleeing natural disaster or other calamities, is awarded based on nationality. See Designation of Nepal for Temporary Protected Status, 80 Fed. Reg. 36,346 (June 24, 2015); Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3,476 (Jan. 21, 2010); Designation of Rwanda Under Temporary Protected Status Program, 59 Fed. Reg. 29,440 (June 7, 1994).

[75] Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52,583 (Aug. 12, 2002). Ultimately, nationals from 25 countries were required to register: Iraq, Iran, Libya, Sudan, Syria, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait.

[76] Removal of Regulations Relating to Special Registration Process for Certain Nonimmigrants, 81 Fed. Reg. 94,231 (Dec. 23, 2016).

[77] See, e.g., Malik v. Gonzales, 213 F. App’x. 173, 174 (4th Cir. 2007) (holding that court lacked jurisdiction to consider selective enforcement claims); Daud v. Gonzales, 207 F. App’x. 194, 202-03 (3d Cir. 2006) (same).

[78] Roudnahal v. Ridge, 310 F. Supp. 2d 884, 892 (N.D. Ohio 2003) (citing the Federal Register notice and noting that “the Executive is designed and entrusted to best shape our national security” and that the registration requirements were facially legitimate “[i]n light of current military operations in the Middle East, combined with a heightened terrorist threat-environment at home and abroad”).

[79] See Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (noting that an immigration law would “survive a constitutional challenge so long as there is a facially legitimate and bona fide reason for the law” (citing Romero v. INS, 399 F.3d 109, 111 (2d Cir. 2005))).

[80] See Washington v. Davis, 426 U.S. 229 (1976) (making it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact).

[81] Muzaffar Chishti & Claire Bergeron, DHS Announces End to Controversial Post-9/11 Immigrant Registration and Tracking Program, Migration Pol’y Inst. (May 17, 2011), https://www.migrationpolicy.org/article/dhs-announces-end-controversial-post-911-immigrant-registration-and-tracking-program. See also Asli Ü. Bâli, The U.S. Already Tried ‘Extreme Vetting’ for Muslims. It Didn’t Work., Wash. Post (Jan. 26, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/01/26/the-u-s-already-tried-extreme-vetting-it-doesnt-work/.

[82] Rajah, 544 F.3d at 439 (noting that there was no basis for the claim that NSEERS was “motivated by an improper animus toward Muslims” as it was “clearly tailored” to the fact that the attacks of September 11 “were facilitated by violations of immigration laws by aliens from predominantly Muslim nations”).

[83] Centro Presente v. United States Dep’t of Homeland Sec., No. CV 18-10340, 2018 WL 3543535, at *5 (D. Mass. July 23, 2018).

[84] Id. at *12.

[85] Id. at *13; see also New York v. Dep’t of Commerce, 1:18-CV-02921-JMF, at 67 (S.D.N.Y. July 26, 2018), available at  https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2018cv02921/491254/215/ (declaring that government’s attempt to invoke Trump v. Hawaii to require deference to the Department of Commerce decision to include a question about citizenship in the 2020 Census as “somewhere between facile and frivolous”).

[86] See Gutierrez-Soto v. Sessions, 317 F. Supp. 3d 917, 930-931 (W.D. Tex. 2018) (observing that, “out of an abundance of caution, the Court will adopt the Supreme Court’s approach from Trump v. Hawaii,” and rejecting claim that revocation of humanitarian parole violated Equal Protection Clause because “it could be reasonably understood to result from a justification independent of unconstitutional grounds. This is because Petitioners’ extrinsic evidence, President Trump’s [discriminatory] statements, lack anything more than a tenuous connection to Respondents’ actions”).

[87] See, e.g., Respondents’ Response in Opposition to Motion for Preliminary Injunction at 21-22, Ms. L. v. U.S. Immigration and Customs Enforcement, 310 F. Supp. 3d 1133 (S.D. Cal. 2018) (No. 18cv0428 DMS), available at https://www.documentcloud.org/documents/4550646-Defendants-Response-in-Opposition-Re-Motion-for.html (“[I]t is essential for DHS to be able to make these discretionary decisions because DHS plays an important role in disrupting smuggling operations. . . . Both ICE and CBP frequently are faced with the need to determine, in a fast-moving and uncertain environment, the legitimacy of a purported family relationship, and to act accordingly. . . . Where concerns arise, CBP and ICE must have the ability to exercise their discretion as to the most appropriate immigration action.”); Respondents’ Supplemental Response in Opposition to Motion for Preliminary Injunction at 13-14, Ms. L. v. U.S. Immigration and Customs Enforcement, 310 F. Supp. 3d 1133 (S.D. Cal. 2018) (No. 18cv0428 DMS), available at https://www.documentcloud.org/documents/4560367-Respondents-Supplemental-Response-in-Opposition.html (“[I]n determining what standard should be applied to a separation decision made by the Government, the Court should consider the immigration enforcement that occurs at the border. . . . [W]hen DHS encounters a purported family group, it . . . must consider the broader issues of safety related to the smuggling of children and the use of children to gain entry into the United States.”).

[88] This approach is in harmony with and could be supported by the Supreme Court’s landmark decision in Boumediene v. Bush, holding that the right to petition for a writ of habeas corpus applied to detainees held at Guantanamo Bay, where the U.S. was not sovereign but had effective control. See Boumediene, 553 U.S. at 765 (“Even when the United States acts outside its borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution.’” (quoting Murphy v. Ramsey, 114 U.S. 15, 44 (1885))).  For more on Boumediene and extra-territorial application of the Constitution, see Christina Duffy Burnett, A Convenient Constitution? Extraterritoriality After Boumediene, 109 Colum. L. Rev. 973 (2009); Stephen I. Vladeck, The Problem of Jurisdictional Non-Precedent, 44 Tulsa L. Rev. 587 (2009).

[89] This line does not help the U.S. citizens and LPRs who have an interest in those hypothetical entrants. In Trump v. Hawaii, respondents emphasized the interests of U.S. citizens in “reuniting with close family who have applied for visas . . . welcom[ing] visitors to [a religious] community,” and the university interest in recruiting and retaining individuals. Brief for Respondents at 19, Trump v. Hawaii, 138 S.Ct. 2392 (2018) (No. 17-965), 2018 WL 1468304. The Court found these interests were adequate to confer standing but not to prompt anything but the most cursory judicial review. And in Kerry v. Din, Justice Scalia wrote on behalf of a plurality that denial of a spouse’s visa application does not deprive a citizen of a fundamental liberty interest. Kerry v. Din, 135 S. Ct. 2128, 2132-36 (2015) (plurality opinion). Importantly, Justice Kennedy in concurrence chose not to decide this question. Id. at 2139 (Kennedy, J., concurring).

[90] Yamataya v. Fisher, 189 U.S. 86, 100 (1903) (“[We have] never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’.”).

[91] See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

[92] Notably, constitutional challenges to the deportation power beyond the procedural have been unsuccessful, whether in the form of Ex Post Facto Clause challenges to the application of new deportation rules to immigrants after they have been admitted, or First Amendment challenges to the grounds of deporation, which historically have included engaging in speech and association that would otherwise be protected by the First Amendment.

[93] See 8 U.S.C. § 1229(a) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”); see generally 8 U.S.C. § 1129.

[94] Landon v. Plasencia, 459 U.S. 21 (1982); cf. Washington v. Trump, 847 F.3d 1151, 1165 (9th Cir. 2017) (“The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to [aliens attempting to reenter after travelling abroad]. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States.”).

[95] For robust articulations of this idea, which have eroded over time, see Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (for “foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law . . . the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law”); and Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”). As the government showed in its position in Jennings v. Rodriguez, some interpret cases such as Knauff v. Shaugnessy to mean that non-citizens seeking an initial entry have no due process rights. But Knauff and cases like it do not so hold. Instead, they are best read as limiting the process owed in certain circumstances while giving significant deference to admission and exclusion judgments. For a full elaboration of this argument, see Brief of Scholars of Constitutional, Immigration, and Administrative Law in Support of Petitioners-Appellees/Cross Appellants, Rodriguez v. Marin, No. 13-56706 (9th Cir. July 27, 2018).

[96] 8 U.S.C. § 1252(e)(3)(B); 8 U.S.C. § 1225(b)(1)(A); see also American Immigration Lawyers Association v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) (holding that particular challenges before it only gave rise to a challenge that the INS had not followed its own procedures, not a challenge to the legality of expedited removal, and holding that the requirement that challenges be brought within 60 days of implementation or issuance of a new regulation was jurisdictional).

[97] The Clinton administration applied expedited removal only to those who arrived at ports of entry with fraudulent documents and were not asylum claimants. The Bush administration extended the procedure to all noncitizens encountered within 14 days of entry and within 100 miles of the border. The Obama administration maintained this regulation. See  Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,878 (Aug. 11, 2004).

[98] Memorandum from Secretary of Homeland Security John F. Kelly to Kevin McAleenan, Acting Commissioner U.S. Customs and Border Protection, et al. (Feb. 20, 2017), available at https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf.

[99] In such circumstances, the legality of the INA’s limitations on judicial review of expedited removal would arguably demand a reconsideration as the result of the serious threat to due process posed. For a discussion of the constitutional questions raised by greatly restricting due process for those who have lived in the U.S. for an extended time, see Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 969 (1998).

[100] Jennings v. Rodriguez, 138 S. Ct. 830, 862 (Breyer, J., dissenting).

[101] Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 224, 226 (1953) (Jackson, J., dissenting).

[102] Much remains open for debate around this question of what substantive liberty interests a non-citizen under government control would have. Freedom from torture and other similar forms of abuse seem the clearest. But the D.C. Circuit’s profound disagreements over whether the Trump administration could slow down (and thwart) the ability of an unaccompanied, undocumented minor in the custody of the United States Department of Health and Human Services from acquiring an abortion underscores that legal status and the imperatives of immigration control can easily shape the way courts see unresolved questions about specific rights. The fact that Judge Kavanaugh dissented from the D.C. Circuit’s en banc rebuke of the Trump administration, arguing that the court created a new right to abortion on demand for an unauthorized immigrant, makes this all the more pointed. See Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) (per curiam).

[103] See Ms. L. v. U.S. Immigration and Customs Enforcement, 302 F. Supp. 3d 1149, 1165-66 (S.D. Cal. 2018) (citing cases describing practices “’so egregious, so outrageous, that  it  may  fairly  be said  to shock the contemporary conscience,’” or that interfere with rights “‘implicit in the concept of ordered liberty,’” and so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.”) (citations omitted).

[104] For other examples of district court pushback, see V.F.B. v. Sessions, No. 3:18-cv-01106-VAB, 2018 WL 3421321 (D. Conn. July 13, 2018) (finding that government likely violated substantive due process right to family integrity, as well as procedural due process, and granting writs for habeas corpus, and appearing to apply strict scrutiny); and Ms. L. v. U.S. Immigration and Customs Enforcement, 302 F. Supp. 3d 1149 (S.D. Cal. 2018) (finding that family separation policy likely violated due process and granting classwide preliminary injunction). See also Flores v. Sessions, No. 85-4544-DMG, at *7 (C.D. Cal. July 9, 2018) (denying government’s ex parte application for exemption from or modification of Flores Agreement that requires noncitizen children in the immigration system to be detained in the least restrictive manner practicable, to permit children taken into custody at border to be detained together with their parents, as “wholly without merit”).

[105] Tom K. Wong, Do Family Separation and Detention Deter Immigration?, Center for Am. Progress (July 24, 2018, 1:30 PM), https://www.americanprogress.org/issues/immigration/reports/2018/07/24/453660/family-separation-detention-deter-immigration/ (showing that monthly U.S. Border Patrol apprehensions of families at the southwest border increased after “pseudo-interventions” like the zero tolerance pilot).

[106] A “shocks the conscience” standard is a high bar for relief, but it need not be understood as a threshold requirement.

[107] Zadvydas v. Davis, 533 U.S. 678, 692 (2001) (“The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious.”); Jennings v. Rodriguez, 138 S. Ct. 830, 846-47 (2018) (rejecting reading an implicit six-month limit on mandatory detention as “fall[ing] far short of a ‘plausible statutory construction’” and remanding the case to the lower courts to decide squarely whether mandatory detention, without individualized review of flight risk or dangerousness, pending removal is constitutional).

[108] For example, in Demore v. Kim, Chief Justice Rehnquist held that “detention during removal proceedings is a constitutionally permissible part of that process,” rejecting a due process challenge. Demore v. Kim, 538 U.S. 510, 531 (2003). The Court noted that “when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal” and gave credence to “[t]he evidence Congress had before it” when enacting the mandatory detention provision. Id. at 528.

[109] As Jennings itself highlights, the lower courts have read the Rehquist opinion in Demore as acceding to mandatory detention only for the short periods of time typically required to execute a removal order, and they have seized on language in Justice Kennedy’s concurrence suggesting that detention could reach an extent that would make it constitutionally problematic. Demore, 538 U.S. at 532 (Kennedy, J., concurring) (“[S]ince the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien . . . could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.”).

[110] Cf. Sessions v. Dimaya, 138 S. Ct. 1204, 1229 (2018) (Gorsuch, J., concurring) (observing, in response to the government’s claim that, in the immigration context, the typical due process vagueness inquiry should be relaxed, that “[t]o acknowledge that the President has broad authority to act in this general area supplies no justification for allowing judges to give content to an impermissibly vague law”).