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Is the Supreme Court Irrational: Trump V. Hawaii

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Is the Supreme Court Irrational: Trump V. Hawaii Owsley Book Proof (Do Not Delete) 6/30/20 7:09 PM IS THE SUPREME COURT IRRATIONAL: TRUMP V. HAWAII BRIAN L. OWSLEY* I. INTRODUCTION President Donald Trump told the American people during the 2016 election that he would discriminate against Muslims if elected. Although each new travel ban the President went on to implement presented a moving target, they all were rooted in the same discriminatory animus. The various challenges to these travel bans often focused on alleged violations of the First Amendment or the Immigration and Nationality Act.1 This article, however, does not address those arguments, but instead tackles a different constitutional issue: rational basis review. No doubt, the Supreme Court’s case law addressing rational basis analysis typically favors the government. Nonetheless, there is a strong argument that the Trump travel bans violate the Constitution because they are irrational. Specifically, the Supreme Court’s decision in Trump v. Hawaii2 was wrongly decided because these travel bans are both underinclusive and overinclusive. Between 1975 and 2015, citizens from the nations designated in the travel bans had not committed any terrorist attacks resulting in any deaths within the United States.3 Indeed, “[o]ver the last four decades, 20 out of 3.25 million refugees welcomed to the United States have been convicted of attempting or committing terrorism on U.S. soil, and only three Americans have been killed in attacks committed by refugees—all by Cubans in the 1970s.”4 Thus, the argument that the travel bans will prevent or reduce terrorist attacks in the United States is not rational. Instead, the record before the Supreme Court established that Trump dislikes Muslims and fully intended to discriminate against them based on this dislike. In Part II, I address the first travel ban and its subsequent litigation. Similarly, Part III discusses the second travel ban and its litigation history. Next, Part IV addresses the September 24, 2017 proclamation, which constituted the third travel ban. In Part V, I analyze the Supreme Court’s decision in Trump v. Hawaii, especially the Court’s discussion on rational * Brian L. Owsley, Assistant Professor of Law, University of North Texas Dallas College of Law; B.A., University of Notre Dame; J.D., Columbia University School of Law; M.I.A., Columbia University School of International and Public Affairs. 1 See Hawaii v. Trump, 859 F.3d 741, 777 (9th Cir. 2017) (per curiam); Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 572, 581 (4th Cir. 2017) (en banc); Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 551–52 (D. Md. 2017). 2 Trump v. Hawaii, 138 S. Ct. 2392 (2018). 3 Uri Friedman, Where America’s Terrorists Actually Come From, ATLANTIC (Jan. 30, 2017), https://www.theatlantic.com/international/archive/2017/01/trump-immigration-ban-terrorism/514361/. That is not to say that nationals from these countries have not tried to commit some terrorist attacks in the United States. One researcher found that there were only seventeen individuals from these countries convicted of attempting or perpetrating terrorist attacks in the United States. Id. No one from either Libya or Syria had been convicted of such offenses. Id. 4 Id. Owsley Book Proof (Do Not Delete) 6/30/20 7:09 PM 592 Southern California Interdisciplinary Law Journal [Vol. 29:591 basis review. Part VI unpacks the Supreme Court’s jurisprudence regarding the role that both underinclusivity and overinclusivity play in rational basis analysis. Finally, Part VII analyzes the underinclusivity and overinclusivity of Trump’s travel bans and his discriminatory animus against Muslims in light of travel bans. II. TRAVEL BAN I a. EXECUTIVE ORDER 13769 President Trump issued his first travel ban, Executive Order 13769 (“the First Travel Ban,”) entitled “Protecting the Nation From Foreign Terrorist Entry into the United States” on January 27, 2017, which temporarily suspended entry into the United States from certain countries.5 Specifically, it noted that almost three thousand people died on September 11, 2001 due to the terroristic acts committed by nineteen foreign nationals who legally entered the United States.6 Thus, the First Travel Ban sought to stop other acts of terrorism by foreign nationals seeking admission into the United States.7 Consistent with this purpose, the Trump administration suspended entry into the United States for immigrants and nonimmigrants from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.8 Furthermore, the First Travel Ban emphasized that admission of Syrian refugees was detrimental to American interests and thus barred their entry until the administration determined that their readmission satisfied American interests.9 People protested the First Travel Ban all over the country, including at airports.10 Moreover, immigration lawyers provided legal assistance to people seeking entry into the United States at these airports.11 Finally, this travel ban brought several legal challenges. i. Washington v. Trump The states of Minnesota and Washington filed a lawsuit challenging the First Travel Ban.12 Specifically, they sought and obtained a temporary restraining order from the district court after establishing that the travel ban 5 See generally Protecting the Nation From Foreign Terrorist Entry into the United States, Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017), superceded by executive order, Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017). 6 Id. at 8,977. 7 Id. 8 Id. at 8,978; see 8 U.S.C. § 1182(f) (2019); Jack Goodman, US Travel Ban: Why These Seven Countries?, BBC (Jan. 30, 2017), http://www.bbc.com/news/world-us-canada-38798588. 9 Protecting the Nation From Foreign Terrorist Entry into the United States, 82 Fed. Reg. at 8,979. 10 Emanuella Grinberg & Madison Park, 2nd Day of Protests Over Trump’s Immigration Policies, CNN (Jan. 30, 2017, 1:42 AM), http://www.cnn.com/2017/01/29/politics/us-immigration- protests/index.html. 11 See id. 12 See generally Washington v. Trump, No. C17-0141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (order granting temporary restraining order). Owsley Book Proof (Do Not Delete) 6/30/20 7:09 PM 2020] Is the Supreme Court Irrational 593 “adversely affect[ed] the States’ residents in areas of employment, education, business, family relations, and freedom to travel.”13 Furthermore, the court found that both states were injured due to “the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.”14 Finally, the court concluded that these injuries were “significant and ongoing.”15 President Trump appealed the district court’s order and sought an order to stay pending appeal on February 4, 2017.16 Three days later, the United States Court of Appeals for the Ninth Circuit heard oral arguments.17 First, the Ninth Circuit found that both Minnesota and Washington had standing to assert rights on behalf of their residents as well as themselves.18 Second, it concluded that the federal courts may address the constitutionality of the travel ban notwithstanding any national security concerns.19 Third, President Trump did not establish that this travel ban had a likelihood of success on the question of whether it violated these foreign nationals’ due process rights.20 Finally, the court determined that President Trump did not demonstrate that the United States would suffer irreparable harm if the stay was not granted.21 On March 8, 2017, President Trump moved to dismiss his appeal, which the Ninth Circuit granted.22 Because none of the parties sought to vacate the order denying the stay of the restraining order, the court, on its own accord, analyzed the question and determined that stay should continue to operate.23 En banc, several Ninth Circuit judges filed dissents from the denial of the reconsideration to the amended order denying the vacatur of the order staying the restraining order.24 Judge Kozinski asserted that reliance on President Trump’s statements during the 2016 election campaign and on his social media posts was inappropriate.25 He also posited that most of the citizens impacted by this travel ban do not have due process rights.26 Additionally, Judge Jay Bybee maintained that the federal courts have a limited role in reviewing a president’s immigration policy.27 Finally, Judge Carlos Bea asserted that states may not sue the federal government for due process violations.28 13 Id. at *2. 14 Id. 15 Id. 16 Washington v. Trump, 691 F. App’x 834, 835 (9th Cir. 2017) (order denying stay pending appeal). 17 See generally Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam). 18 See id. at 1159–61. 19 See id. at 1161–64. 20 See id. at 1164–67. 21 See id. at 1168–69. 22 Washington v. Trump, 858 F.3d 1168, 1169 (9th Cir. 2017) (amended order). 23 See id. 24 Id. at 1173–88 (Kozinski, J., Bybee, J., and Bea, J. dissenting). 25 See id. at 1173–74 (Kozinski, J. dissenting); see also Richard L. Hasen, Does the First Amendment Protect Trump’s Travel Ban?, SLATE (Mar. 20, 2017, 9:28 AM), https://slate.com/news-and- politics/2017/03/the-9th-circuits-alex-kozinski-defends-trumps-travel-ban-on-first-amendment- grounds.html (characterizing Judge Kozinski’s First Amendment defense of Trump’s campaign statements). 26 858 F.3d at 1171–72 (Kozinski, J. dissenting). 27 See id. at 1174–85 (Bybee, J. dissenting). 28 See id. at 1185–88 (Bea, J. dissenting). Owsley Book Proof (Do Not Delete) 6/30/20 7:09 PM 594 Southern California Interdisciplinary Law Journal [Vol.
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