President Donald Trump filed an appeal with the Supreme Court from adverse decisions in two circuit courts on the revised version of his travel ban Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
If the Court decides this appeal on its merits, which I do not expect the Court to do, the most controversial issue will be the claim that Trump is using a national security reason for the travel ban to cover up his real purpose, religious discrimination, and, therefore, the Executive Order violates the First Amendment's Establishment Clause.
Even if Trump had hostility towards the Muslim religion in his heart when he decided to write the travel ban, it is not the reason he stated in the Executive Order, and the travel ban opponents have not established a legitimate basis for rejecting the stated reason.
The test is whether permitting the banned aliens to enter the United States would be detrimental to the interests of the United States.
Trump issued the travel ban order pursuant to section 212(f) of the Immigration and Nationality Act, the pertinent part of which reads as follows:
(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.
May not need to state a reason at all.
In Kleindienst v. Mandel, the Court observed that, without exception, it has sustained Congress' “plenary power to make rules for the admission of aliens." And, "The power of Congress .... to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." (Page 408 U. S. 766)
Mandel held that when Congress has made a conditional delegation of its plenary power over the exclusion of aliens to the Executive Branch, and the Executive Branch exercises this power “on the basis of a facially legitimate and bona fide reason,” the courts will not look behind the exercise of that discretion.
The next sentence in Mandel indicates that it may not be necessary to state the reason. “What First Amendment or other grounds may be available for attacking [an] exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.” (Page 408 U. S. 769-70).
No basis for finding religious discrimination in the language of the order.
But the travel ban order does state a reason, and the District Court for the District of Hawaii found no basis in the stated reason or elsewhere in the language of the order for suspecting that the real purpose of the ban was religious discrimination:
It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation (page 30).
Does it matter if other explanations for the travel ban are possible?
The district court nevertheless went on to find that religious discrimination was the real reason for the ban. In other words, the court finds two reasons, the stated one, which does not reflect religious discrimination, and the real reason, which was found in Trump’s calls for a Muslim ban when he was still campaigning.
Other areas of immigration law do require a weighing of conflicting reasons. An alien is not eligible for an immigration benefit on the basis of a sham marriage, which is defined as a marriage that was entered into for the primary purpose of circumventing the immigration laws. But if the primary reason was that the couple was in love and wanted to spend their lives together, the fact that they got married so the alien spouse could stay in America does not make the marriage a sham.
In the present case, however, the Court will not be weighing reasons to determine which one is primary. It will be interpreting an unambiguous statutory provision that does not require the stated reason to be the primary one. It doesn’t even require the president to say why he made the finding. Section 212(f) has no requirements at all. The president just has to proclaim that he has found that 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.”
If opponents of the travel ban find this unacceptable, their only recourse is to lobby Congress to revise section 212(f).
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.