Date: 06-26-2018

Case Style:

Case Number: 17-965

Judge: Roberts

Court: United States Supreme Court

Plaintiff's Attorney:

Defendant's Attorney:

Description: Under the Immigration and Nationality Act, foreignnationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals ofcountries that do not share adequate information for aninformed entry determination, or that otherwise presentnational security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of theFirst Amendment.
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I
A
Shortly after taking office, President Trump signed Executive Order No. 13769, Protecting the Nation FromForeign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (2017) (EO–1). EO–1 directed the Secretary ofHomeland Security to conduct a review to examine the adequacy of information provided by foreign governmentsabout their nationals seeking to enter the United States. §3(a). Pending that review, the order suspended for 90 days the entry of foreign nationals from seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—that had been previously identified by Congress or prior administrations as posing heightened terrorism risks.§3(c). The District Court for the Western District of Washington entered a temporary restraining order blocking the entry restrictions, and the Court of Appeals for the Ninth Circuit denied the Government’s request to stay that order. Washington v. Trump, 847 F. 3d 1151 (2017) (per curiam).
In response, the President revoked EO–1, replacing it with Executive Order No. 13780, which again directed a worldwide review. 82 Fed. Reg. 13209 (2017) (EO–2). Citing investigative burdens on agencies and the need todiminish the risk that dangerous individuals would enter without adequate vetting, EO–2 also temporarily restrictedthe entry (with case-by-case waivers) of foreign nationals from six of the countries covered by EO–1: Iran, Libya,Somalia, Sudan, Syria, and Yemen. §§2(c), 3(a). The order explained that those countries had been selected because each “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” §1(d). The entry restriction was to stay in effect for 90 days, pending completion of the worldwide review.
These interim measures were immediately challenged in
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court. The District Courts for the Districts of Marylandand Hawaii entered nationwide preliminary injunctions barring enforcement of the entry suspension, and therespective Courts of Appeals upheld those injunctions, albeit on different grounds. International Refugee Assistance Project (IRAP) v. Trump, 857 F. 3d 554 (CA4 2017); Hawaii v. Trump, 859 F. 3d 741 (CA9 2017) (per curiam).This Court granted certiorari and stayed the injunctions—allowing the entry suspension to go into effect—with respect to foreign nationals who lacked a “credible claim of a bona fide relationship” with a person or entity in theUnited States. Trump v. IRAP, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 12). The temporary restrictions in EO–2 expired before this Court took any action, and we vacated the lower court decisions as moot. Trump v. IRAP, 583 U. S. ___ (2017); Trump v. Hawaii, 583 U. S. ___ (2017).
On September 24, 2017, after completion of the worldwide review, the President issued the Proclamation before us—Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-SafetyThreats. 82 Fed. Reg. 45161. The Proclamation (as itstitle indicates) sought to improve vetting procedures byidentifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present “public safety threats.” §1(a). To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the Presidentdeemed inadequate.
The Proclamation described how foreign states wereselected for inclusion based on the review undertaken pursuant to EO–2. As part of that review, the Department of Homeland Security (DHS), in consultation with the State Department and several intelligence agencies,
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developed a “baseline” for the information required from foreign governments to confirm the identity of individuals seeking entry into the United States, and to determine whether those individuals pose a security threat. §1(c).The baseline included three components. The first, “identity-management information,” focused on whether aforeign government ensures the integrity of travel documents by issuing electronic passports, reporting lost orstolen passports, and making available additional identity-related information. Second, the agencies considered theextent to which the country discloses information on criminal history and suspected terrorist links, provides travel document exemplars, and facilitates the U. S. Government’s receipt of information about airline passengers and crews traveling to the United States. Finally, the agenciesweighed various indicators of national security risk,including whether the foreign state is a known or potential terrorist safe haven and whether it regularly declines to receive returning nationals following final orders of removal from the United States. Ibid.
DHS collected and evaluated data regarding all foreign governments. §1(d). It identified 16 countries as having deficient information-sharing practices and presentingnational security concerns, and another 31 countries as “at risk” of similarly failing to meet the baseline. §1(e). The State Department then undertook diplomatic efforts over a 50-day period to encourage all foreign governments to improve their practices. §1(f). As a result of that effort, numerous countries provided DHS with travel documentexemplars and agreed to share information on known orsuspected terrorists. Ibid.
Following the 50-day period, the Acting Secretary ofHomeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient in terms of their risk profileand willingness to provide requested information. The
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Acting Secretary recommended that the President impose entry restrictions on certain nationals from all of those countries except Iraq. §§1(g), (h). She also concluded that although Somalia generally satisfied the information-sharing component of the baseline standards, its “identitymanagement deficiencies” and “significant terrorist presence” presented special circumstances justifying additionallimitations. She therefore recommended entry limitationsfor certain nationals of that country. §1(i). As for Iraq,the Acting Secretary found that entry limitations on its nationals were not warranted given the close cooperative relationship between the U. S. and Iraqi Governments and Iraq’s commitment to combating ISIS. §1(g).
After consulting with multiple Cabinet members and other officials, the President adopted the Acting Secretary’s recommendations and issued the Proclamation.Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), the President determined that certain entryrestrictions were necessary to “prevent the entry of thoseforeign nationals about whom the United States Government lacks sufficient information”; “elicit improved identity-management and information-sharing protocols and practices from foreign governments”; and otherwise “advance [the] foreign policy, national security, and counter-terrorism objectives” of the United States. Proclamation §1(h). The President explained that these restrictionswould be the “most likely to encourage cooperation” while“protect[ing] the United States until such time as improvements occur.” Ibid.
The Proclamation imposed a range of restrictions that vary based on the “distinct circumstances” in each of the eight countries. Ibid. For countries that do not cooperate with the United States in identifying security risks (Iran,North Korea, and Syria), the Proclamation suspends entryof all nationals, except for Iranians seeking nonimmigrantstudent and exchange-visitor visas. §§2(b)(ii), (d)(ii),
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(e)(ii). For countries that have information-sharing deficiencies but are nonetheless “valuable counterterrorism partner[s]” (Chad, Libya, and Yemen), it restricts entry ofnationals seeking immigrant visas and nonimmigrant business or tourist visas. §§2(a)(i), (c)(i), (g)(i). Because Somalia generally satisfies the baseline standards but was found to present special risk factors, the Proclamationsuspends entry of nationals seeking immigrant visas and requires additional scrutiny of nationals seeking nonimmigrant visas. §2(h)(ii). And for Venezuela, which refuses to cooperate in information sharing but for which alternative means are available to identify its nationals, the Proclamation limits entry only of certain governmentofficials and their family members on nonimmigrant business or tourist visas. §2(f)(ii).
The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum. §3(b). It also provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such asif the foreign national seeks to reside with a close familymember, obtain urgent medical care, or pursue significant business obligations). The Proclamation further directs DHS to assess on a continuing basis whether entry restrictions should be modified or continued, and to report tothe President every 180 days. §4. Upon completion of the first such review period, the President, on the recommendation of the Secretary of Homeland Security, determinedthat Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals. Presidential Proclamation No. 9723, 83 Fed. Reg. 15937 (2018).
B Plaintiffs in this case are the State of Hawaii, three
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individuals (Dr. Ismail Elshikh, John Doe #1, and John Doe #2), and the Muslim Association of Hawaii. The State operates the University of Hawaii system, which recruitsstudents and faculty from the designated countries. The three individual plaintiffs are U. S. citizens or lawful permanent residents who have relatives from Iran, Syria,and Yemen applying for immigrant or nonimmigrant visas. The Association is a nonprofit organization that operates a mosque in Hawaii.
Plaintiffs challenged the Proclamation—except as applied to North Korea and Venezuela—on several grounds. As relevant here, they argued that the Proclamation contravenes provisions in the Immigration andNationality Act (INA), 66 Stat. 187, as amended. Plaintiffs further claimed that the Proclamation violates the Establishment Clause of the First Amendment, because it was motivated not by concerns pertaining to nationalsecurity but by animus toward Islam.
The District Court granted a nationwide preliminaryinjunction barring enforcement of the entry restrictions. The court concluded that the Proclamation violated two provisions of the INA: §1182(f), because the President did not make sufficient findings that the entry of the coveredforeign nationals would be detrimental to the national interest, and §1152(a)(1)(A), because the policy discriminates against immigrant visa applicants on the basis of nationality. 265 F. Supp. 3d 1140, 1155–1159 (Haw. 2017). The Government requested expedited briefing and sought a stay pending appeal. The Court of Appeals for the Ninth Circuit granted a partial stay, permitting enforcement of the Proclamation with respect to foreign nationalswho lack a bona fide relationship with the United States. This Court then stayed the injunction in full pendingdisposition of the Government’s appeal. 583 U. S. ___ (2017).
The Court of Appeals affirmed. The court first held that
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the Proclamation exceeds the President’s authority under §1182(f). In its view, that provision authorizes only a “temporary” suspension of entry in response to “exigencies” that “Congress would be ill-equipped to address.” 878 F. 3d 662, 684, 688 (2017). The court further reasoned that the Proclamation “conflicts with the INA’s finelyreticulated regulatory scheme” by addressing “matters ofimmigration already passed upon by Congress.” Id., at 685, 690. The Ninth Circuit then turned to §1152(a)(1)(A)and determined that the entry restrictions also contravene the prohibition on nationality-based discrimination in the issuance of immigrant visas. The court did not reach plaintiffs’ Establishment Clause claim.
We granted certiorari. 583 U. S. ___ (2018).
II Before addressing the merits of plaintiffs’ statutoryclaims, we consider whether we have authority to do so. The Government argues that plaintiffs’ challenge to the Proclamation under the INA is not justiciable. Relying onthe doctrine of consular nonreviewability, the Government contends that because aliens have no “claim of right” toenter the United States, and because exclusion of aliens is “a fundamental act of sovereignty” by the political branches,review of an exclusion decision “is not within the provinceof any court, unless expressly authorized by law.” United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542– 543 (1950). According to the Government, that principle barring review is reflected in the INA, which sets forth a comprehensive framework for review of orders of removal, but authorizes judicial review only for aliens physically present in the United States. See Brief for Petitioners 19– 20 (citing 8 U. S. C. §1252).The justiciability of plaintiffs’ challenge under the INA presents a difficult question. The Government made similar arguments that no judicial review was available in
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Sale v. Haitian Centers Council, Inc., 509 U. S. 155 (1993). The Court in that case, however, went on to consider on the merits a statutory claim like the one before us without addressing the issue of reviewability. The Government does not argue that the doctrine of consular nonreview- ability goes to the Court’s jurisdiction, see Tr. of Oral Arg. 13, nor does it point to any provision of the INA that expressly strips the Court of jurisdiction over plaintiffs’ claims, see Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013) (requiring Congress to “clearlystate[]” that a statutory provision is jurisdictional). As a result, we may assume without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consularnonreviewability or any other statutory nonreviewability issue, and we proceed on that basis.
III The INA establishes numerous grounds on which analien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B)(terrorist activities), (a)(3)(C) (foreign policy grounds). Congress has also delegated to the President authority tosuspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, §1182(f),enables the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.”1
—————— 1The President also invoked his power under 8 U. S. C. §1185(a)(1),which grants the President authority to adopt “reasonable rules,regulations, and orders” governing entry or removal of aliens, “subjectto such limitations and exceptions as [he] may prescribe.” Because this provision “substantially overlap[s]” with §1182(f), we agree with the Government that we “need not resolve . . . the precise relationshipbetween the two statutes” in evaluating the validity of the Proclama10
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Plaintiffs argue that the Proclamation is not a valid exercise of the President’s authority under the INA. In their view, §1182(f) confers only a residual power to temporarily halt the entry of a discrete group of aliens engaged in harmful conduct. They also assert that the Proclamation violates another provision of the INA—8 U. S. C. §1152(a)(1)(A)—because it discriminates on the basis of nationality in the issuance of immigrant visas.
By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisionsin the INA, and their appeal to the statute’s purposes andlegislative history, fail to overcome the clear statutorylanguage.
A The text of §1182(f) states: “Whenever the President finds that the entry of anyaliens 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.”
By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to
——————
tion. Brief for Petitioners 32–33.
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the national interest); whose entry to suspend (“all aliensor any class of aliens”); for how long (“for such period as heshall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that§1182(f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187 (finding it “perfectly clear” that the President could “establish a naval blockade” to prevent illegal migrants from entering theUnited States); see also Abourezk v. Reagan, 785 F. 2d 1043, 1049, n. 2 (CADC 1986) (describing the “sweepingproclamation power” in §1182(f) as enabling the President to supplement the other grounds of inadmissibility in theINA).
The Proclamation falls well within this comprehensivedelegation. The sole prerequisite set forth in §1182(f) isthat the President “find[]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled thatrequirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every singlecountry’s compliance with the information and risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments—several of which are state sponsors of terrorism—deprivethe Government of “sufficient information to assess the risks [those countries’ nationals] pose to the UnitedStates.” Proclamation §1(h)(i). Based on that review, the President found that it was in the national interest to restrict entry of aliens who could not be vetted withadequate information—both to protect national security and public safety, and to induce improvement by theirhome countries. The Proclamation therefore “craft[ed] . . . country-specific restrictions that would be most likely to
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encourage cooperation given each country’s distinct circumstances,” while securing the Nation “until such timeas improvements occur.” Ibid.2
Plaintiffs believe that these findings are insufficient.They argue, as an initial matter, that the Proclamation fails to provide a persuasive rationale for why nationality alone renders the covered foreign nationals a security risk.And they further discount the President’s stated concernabout deficient vetting because the Proclamation allowsmany aliens from the designated countries to enter on nonimmigrant visas.
Such arguments are grounded on the premise that §1182(f) not only requires the President to make a findingthat entry “would be detrimental to the interests of the United States,” but also to explain that finding with sufficient detail to enable judicial review. That premise isquestionable. See Webster v. Doe, 486 U. S. 592, 600 (1988) (concluding that a statute authorizing the CIA Director to terminate an employee when the Director“shall deem such termination necessary or advisable inthe interests of the United States” forecloses “any meaningful judicial standard of review”). But even assumingthat some form of review is appropriate, plaintiffs’ attackson the sufficiency of the President’s findings cannot besustained. The 12-page Proclamation—which thoroughlydescribes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions—is more detailed than any prior order a President has issued under §1182(f). Contrast Presidential Proclamation No. 6958, 3 CFR 133 (1996) (President Clinton) (explaining in one sentence why suspending entry of members of the
—————— 2The Proclamation states that it does not disclose every ground for the country-specific restrictions because “[d]escribing all of thosereasons publicly . . . would cause serious damage to the national security of the United States, and many such descriptions are classified.” §1(j).
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Sudanese government and armed forces “is in the foreign policy interests of the United States”); Presidential Proclamation No. 4865, 3 CFR 50–51 (1981) (President Reagan) (explaining in five sentences why measures tocurtail “the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States” are “necessary”).
Moreover, plaintiffs’ request for a searching inquiry intothe persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is“irrelevant to the scope of his [§1182(f)] authority.” Sale, 509 U. S., at 187–188. And when the President adopts “apreventive measure . . . in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” Holder v. Humanitarian Law Project, 561 U. S. 1, 35 (2010).
The Proclamation also comports with the remainingtextual limits in §1182(f). We agree with plaintiffs that the word “suspend” often connotes a “defer[ral] till later,” Webster’s Third New International Dictionary 2303 (1966). But that does not mean that the President is required to prescribe in advance a fixed end date for theentry restrictions. Section 1182(f) authorizes the President to suspend entry “for such period as he shall deemnecessary.” It follows that when a President suspendsentry in response to a diplomatic dispute or policy concern,he may link the duration of those restrictions, implicitly orexplicitly, to the resolution of the triggering condition.See, e.g., Presidential Proclamation No. 5829, 3 CFR 88 (1988) (President Reagan) (suspending the entry of certainPanamanian nationals “until such time as . . . democracyhas been restored in Panama”); Presidential Proclamation
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No. 8693, 3 CFR 86–87 (2011) (President Obama) (suspending the entry of individuals subject to a travel restriction under United Nations Security Council resolutions “until such time as the Secretary of State determines that [the suspension] is no longer necessary”). In fact, notone of the 43 suspension orders issued prior to this litigation has specified a precise end date.
Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only solong as necessary to “address” the identified “inadequaciesand risks” within the covered nations. Proclamation Preamble, and §1(h); see ibid. (explaining that the aim is to “relax[] or remove[]” the entry restrictions “as soon aspossible”). To that end, the Proclamation establishes an ongoing process to engage covered nations and assess every 180 days whether the entry restrictions should be modified or terminated. §§4(a), (b). Indeed, after the initial review period, the President determined that Chadhad made sufficient improvements to its identity-management protocols, and he accordingly lifted the entrysuspension on its nationals. See Proclamation No. 9723, 83 Fed. Reg. 15937.
Finally, the Proclamation properly identifies a “class ofaliens”—nationals of select countries—whose entry issuspended. Plaintiffs argue that “class” must refer to a well-defined group of individuals who share a common“characteristic” apart from nationality. Brief for Respondents 42. But the text of §1182(f), of course, does not say that, and the word “class” comfortably encompasses a group of people linked by nationality. Plaintiffs also contend that the class cannot be “overbroad.” Brief for Respondents 42. But that simply amounts to an unspokentailoring requirement found nowhere in Congress’s grant of authority to suspend entry of not only “any class ofaliens” but “all aliens.”
In short, the language of §1182(f) is clear, and the Proc15
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lamation does not exceed any textual limit on the President’s authority. B Confronted with this “facially broad grant of power,” 878
F. 3d, at 688, plaintiffs focus their attention on statutory structure and legislative purpose. They seek support in, first, the immigration scheme reflected in the INA as awhole, and, second, the legislative history of §1182(f) andhistorical practice. Neither argument justifies departing from the clear text of the statute.
1 Plaintiffs’ structural argument starts with the premise that §1182(f) does not give the President authority to countermand Congress’s considered policy judgments.The President, they say, may supplement the INA, but hecannot supplant it. And in their view, the Proclamation falls in the latter category because Congress has alreadyspecified a two-part solution to the problem of aliens seeking entry from countries that do not share sufficientinformation with the United States. First, Congress designed an individualized vetting system that places theburden on the alien to prove his admissibility. See §1361.Second, instead of banning the entry of nationals fromparticular countries, Congress sought to encourage information sharing through a Visa Waiver Program offeringfast-track admission for countries that cooperate with the United States. See §1187. We may assume that §1182(f) does not allow the President to expressly override particular provisions of the INA. But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in theNation’s vetting system. To the contrary, the Proclamation supports Congress’s
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individualized approach for determining admissibility.The INA sets forth various inadmissibility grounds based on connections to terrorism and criminal history, but those provisions can only work when the consular officer has sufficient (and sufficiently reliable) information to makethat determination. The Proclamation promotes the effectiveness of the vetting process by helping to ensure the availability of such information.
Plaintiffs suggest that the entry restrictions are unnecessary because consular officers can simply deny visas in individual cases when an alien fails to carry his burden ofproving admissibility—for example, by failing to producecertified records regarding his criminal history. Brief for Respondents 48. But that misses the point: A critical finding of the Proclamation is that the failure of certaincountries to provide reliable information prevents the Government from accurately determining whether analien is inadmissible or poses a threat. Proclamation §1(h). Unless consular officers are expected to apply categorical rules and deny entry from those countries across the board, fraudulent or unreliable documentation may thwart their review in individual cases. And at any rate, the INA certainly does not require that systemicproblems such as the lack of reliable information be addressed only in a progression of case-by-case admissibility determinations. One of the key objectives of the Proclamation is to encourage foreign governments to improve their practices, thus facilitating the Government’s vetting process overall. Ibid.
Nor is there a conflict between the Proclamation and the Visa Waiver Program. The Program allows travel withouta visa for short-term visitors from 38 countries that have entered into a “rigorous security partnership” with the United States. DHS, U. S. Visa Waiver Program (Apr. 6,2016), http://www.dhs.gov/visa-waiver-program (as lastvisited June 25, 2018). Eligibility for that partnership
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involves “broad and consequential assessments of [the country’s] foreign security standards and operations.” Ibid. A foreign government must (among other things) undergo a comprehensive evaluation of its “counterterrorism, law enforcement, immigration enforcement, passportsecurity, and border management capabilities,” often including “operational site inspections of airports, seaports, land borders, and passport production and issuancefacilities.” Ibid.
Congress’s decision to authorize a benefit for “many of America’s closest allies,” ibid., did not implicitly foreclosethe Executive from imposing tighter restrictions on nationals of certain high-risk countries. The Visa Waiver Program creates a special exemption for citizens of countries that maintain exemplary security standards andoffer “reciprocal [travel] privileges” to United States citizens. 8 U. S. C. §1187(a)(2)(A). But in establishing aselect partnership covering less than 20% of the countriesin the world, Congress did not address what requirementsshould govern the entry of nationals from the vast majorityof countries that fall short of that gold standard—particularly those nations presenting heightened terrorism concerns. Nor did Congress attempt to determine—as the multi-agency review process did—whether those high-risk countries provide a minimum baseline of information to adequately vet their nationals. Once again, this is not a situation where “Congress has stepped into the space and solved the exact problem.” Tr. of Oral Arg. 53.
Although plaintiffs claim that their reading preservesfor the President a flexible power to “supplement” the INA, their understanding of the President’s authority is remarkably cramped: He may suspend entry by classes of aliens “similar in nature” to the existing categories ofinadmissibility—but not too similar—or only in responseto “some exigent circumstance” that Congress did notalready touch on in the INA. Brief for Respondents 31, 36,
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50; see also Tr. of Oral Arg. 57 (“Presidents have wide berth in this area . . . if there’s any sort of emergency.”). In any event, 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 §1182(f). Fairly read, the provision vests authority in the President to impose additional limitations on entry beyond thegrounds for exclusion set forth in the INA—including in response to circumstances that might affect the vettingsystem or other “interests of the United States.”
Because plaintiffs do not point to any contradiction withanother provision of the INA, the President has not exceeded his authority under §1182(f).
2 Plaintiffs seek to locate additional limitations on the scope of §1182(f) in the statutory background and legislative history. Given the clarity of the text, we need notconsider such extra-textual evidence. See State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U. S. ___, ___ (2016) (slip op., at 9). At any rate, plaintiffs’evidence supports the plain meaning of the provision.Drawing on legislative debates over §1182(f), plaintiffssuggest that the President’s suspension power should belimited to exigencies where it would be difficult for Congress to react promptly. Precursor provisions enacted during the First and Second World Wars confined the President’s exclusion authority to times of “war” and “national emergency.” See Act of May 22, 1918, §1(a), 40Stat. 559; Act of June 21, 1941, ch. 210, §1, 55 Stat. 252.When Congress enacted §1182(f) in 1952, plaintiffs note, it borrowed “nearly verbatim” from those predecessor statutes, and one of the bill’s sponsors affirmed that the provision would apply only during a time of crisis. According toplaintiffs, it therefore follows that Congress sought todelegate only a similarly tailored suspension power in
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§1182(f). Brief for Respondents 39–40.
If anything, the drafting history suggests the opposite.In borrowing “nearly verbatim” from the pre-existingstatute, Congress made one critical alteration—it removed the national emergency standard that plaintiffs now seekto reintroduce in another form. Weighing Congress’s conscious departure from its wartime statutes against anisolated floor statement, the departure is far more probative. See NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 16) (“[F]loor statements by individuallegislators rank among the least illuminating forms of legislative history.”). When Congress wishes to conditionan exercise of executive authority on the President’s finding of an exigency or crisis, it knows how to say just that. See, e.g., 16 U. S. C. §824o–1(b); 42 U. S. C. §5192; 50
U. S. C. §§1701, 1702. Here, Congress instead chose tocondition the President’s exercise of the suspension authority on a different finding: that the entry of an alien or class of aliens would be “detrimental to the interests of the United States.”
Plaintiffs also strive to infer limitations from executive practice. By their count, every previous suspension order under §1182(f) can be slotted into one of two categories. The vast majority targeted discrete groups of foreignnationals engaging in conduct “deemed harmful by the immigration laws.” And the remaining entry restrictions that focused on entire nationalities—namely, President Carter’s response to the Iran hostage crisis and PresidentReagan’s suspension of immigration from Cuba—were, intheir view, designed as a response to diplomatic emergencies “that the immigration laws do not address.” Brief for Respondents 40–41.
Even if we were willing to confine expansive language in light of its past applications, the historical evidence ismore equivocal than plaintiffs acknowledge. Presidents have repeatedly suspended entry not because the covered
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nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U. S. foreign policy interests. See, e.g., Exec. Order No. 13662, 3 CFR 233 (2014) (President Obama) (suspending entry of Russian nationals working in the financial services, energy, mining, engineering, or defense sectors,in light of the Russian Federation’s “annexation of Crimeaand its use of force in Ukraine”); Presidential Proclamation No. 6958, 3 CFR 133 (1997) (President Clinton) (suspending entry of Sudanese governmental and militarypersonnel, citing “foreign policy interests of the UnitedStates” based on Sudan’s refusal to comply with UnitedNations resolution). And while some of these reprisals were directed at subsets of aliens from the countries at issue, others broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes. For example, President Reagan invoked §1182(f) to suspend entry“as immigrants” by almost all Cuban nationals, to apply pressure on the Cuban Government. Presidential Proclamation No. 5517, 3 CFR 102 (1986). Plaintiffs try to fit this latter order within their carve-out for emergencyaction, but the proclamation was based in part on Cuba’sdecision to breach an immigration agreement some 15 months earlier.
More significantly, plaintiffs’ argument about historical practice is a double-edged sword. The more ad hoc their account of executive action—to fit the history into their theory—the harder it becomes to see such a refined delegation in a statute that grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.
C Plaintiffs’ final statutory argument is that the President’s entry suspension violates §1152(a)(1)(A), whichprovides that “no person shall . . . be discriminated against
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in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” They contend that we should interpret theprovision as prohibiting nationality-based discrimination throughout the entire immigration process, despite the reference in §1152(a)(1)(A) to the act of visa issuance alone. Specifically, plaintiffs argue that §1152(a)(1)(A) applies to the predicate question of a visa applicant’seligibility for admission and the subsequent question whether the holder of a visa may in fact enter the country.Any other conclusion, they say, would allow the President to circumvent the protections against discrimination enshrined in §1152(a)(1)(A).
As an initial matter, this argument challenges only thevalidity of the entry restrictions on immigrant travel. Section 1152(a)(1)(A) is expressly limited to the issuanceof “immigrant visa[s]” while §1182(f) allows the President to suspend entry of “immigrants or nonimmigrants.” At a minimum, then, plaintiffs’ reading would not affect any of the limitations on nonimmigrant travel in the Proclamation.
In any event, we reject plaintiffs’ interpretation becauseit ignores the basic distinction between admissibilitydeterminations and visa issuance that runs throughoutthe INA.3 Section 1182 defines the pool of individuals who
—————— 3The Act is rife with examples distinguishing between the two concepts. See, e.g., 8 U. S. C. §1101(a)(4) (“The term ‘application foradmission’ has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa.”); §1182(a) (“ineligible to receive visas andineligible to be admitted”); §1182(a)(3)(D)(iii) (“establishes to thesatisfaction of the consular officer when applying for a visa . . . or to the satisfaction of the Attorney General when applying for admission”);§1182(h)(1)(A)(i) (“alien’s application for a visa, admission, or adjustment of status”); §1187 (permitting entry without a visa); §1361 (establishing burden of proof for when a person “makes application for a visa. . . , or makes application for admission, or otherwise attempts to enter
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are admissible to the United States. Its restrictions come into play at two points in the process of gaining entry (or admission)4 into the United States. First, any alien who is inadmissible under §1182 (based on, for example, healthrisks, criminal history, or foreign policy consequences) isscreened out as “ineligible to receive a visa.” 8 U. S. C. §1201(g). Second, even if a consular officer issues a visa, entry into the United States is not guaranteed. As everyvisa application explains, a visa does not entitle an aliento enter the United States “if, upon arrival,” an immigration officer determines that the applicant is “inadmissible under this chapter, or any other provision of law”—including §1182(f). §1201(h).
Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of alienswho are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundariesof admissibility into the United States, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrantvisas based on nationality and other traits. The distinction between admissibility—to which §1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in §1152(a)(1)(A) to constrainthe President’s power to determine who may enter thecountry, it could easily have chosen language directed tothat end. See, e.g., §§1182(a)(3)(C)(ii), (iii) (providing that certain aliens “shall not be excludable or subject to restrictions or conditions on entry . . . because of the alien’s
—————— the United States”). 4The concepts of entry and admission—but not issuance of a visa—are used interchangeably in the INA. See §1101(a)(13)(A) (defining“admission” as the “lawful entry of the alien into the United States”).
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past, current, or expected beliefs, statements, or associations” (emphasis added)). “The fact that [Congress] didnot adopt [a] readily available and apparent alternative strongly supports” the conclusion that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Knight v. Commissioner, 552 U. S. 181, 188 (2008).
Common sense and historical practice confirm as much. Section 1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in §1182. Presidents have repeatedly exercised their authority to suspendentry on the basis of nationality. As noted, President Reagan relied on §1182(f) to suspend entry “as immigrants by all Cuban nationals,” subject to exceptions.Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). Likewise, President Carter invoked §1185(a)(1) to deny and revoke visas to all Iranian nationals. See Exec. Order No. 12172, 3 CFR 461 (1979), as amended by Exec. Order No.12206, 3 CFR 249 (1980); Public Papers of the Presidents,Jimmy Carter, Sanctions Against Iran, Vol. 1, Apr. 7,1980, pp. 611–612 (1980); see also n. 1, supra.
On plaintiffs’ reading, those orders were beyond thePresident’s authority. The entry restrictions in the Proclamation on North Korea (which plaintiffs do not challenge in this litigation) would also be unlawful. Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to asingle region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.
In a reprise of their §1182(f) argument, plaintiffs attempt to soften their position by falling back on an implicit exception for Presidential actions that are “closely drawn” to address “specific fast-breaking exigencies.” Brief for Respondents 60–61. Yet the absence of any textual basisfor such an exception more likely indicates that Congress
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did not intend for §1152(a)(1)(A) to limit the President’s flexible authority to suspend entry based on foreign policyinterests. In addition, plaintiffs’ proposed exigency test would require courts, rather than the President, to determine whether a foreign government’s conduct rises to the level that would trigger a supposed implicit exception to a federal statute. See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 491 (1999) (explaining that even if the Executive “disclose[d] its . . . reasons for deeming nationals of a particular country a special threat,” courts would be “unable to assess their adequacy”).The text of §1152(a)(1)(A) offers no standards that wouldenable courts to assess, for example, whether the situationin North Korea justifies entry restrictions while the terrorist threat in Yemen does not.
* * * The Proclamation is squarely within the scope of Presidential authority under the INA. Indeed, neither dissent even attempts any serious argument to the contrary,despite the fact that plaintiffs’ primary contention below and in their briefing before this Court was that the Proclamation violated the statute.
IV
A
We now turn to plaintiffs’ claim that the Proclamationwas issued for the unconstitutional purpose of excludingMuslims. Because we have an obligation to assure ourselves of jurisdiction under Article III, we begin by addressing the question whether plaintiffs have standing to bring their constitutional challenge.
Federal courts have authority under the Constitution todecide legal questions only in the course of resolving “Cases” or “Controversies.” Art. III, §2. One of the essential elements of a legal case or controversy is that the
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plaintiff have standing to sue. Standing requires morethan just a “keen interest in the issue.” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). It requires allegations—and, eventually, proof—that the plaintiff “personal[ly]” suffered a concrete and particularized injury in connectionwith the conduct about which he complains. Spokeo, Inc.
v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 7). In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show, as in other cases, that he is“directly affected by the laws and practices against which[his] complaints are directed.” School Dist. of Abington Township v. Schempp, 374 U. S. 203, 224, n. 9 (1963). That is an issue here because the entry restrictions apply not to plaintiffs themselves but to others seeking to enterthe United States.
Plaintiffs first argue that they have standing on theground that the Proclamation “establishes a disfavoredfaith” and violates “their own right to be free from federal [religious] establishments.” Brief for Respondents 27–28 (emphasis deleted). They describe such injury as “spiritual and dignitary.” Id., at 29.
We need not decide whether the claimed dignitary interest establishes an adequate ground for standing. The three individual plaintiffs assert another, more concrete injury: the alleged real-world effect that the Proclamation has had in keeping them separated from certain relatives who seek to enter the country. See ibid.; Town of Chester
v. Laroe Estates, Inc., 581 U. S. ___, ___–___ (2017) (slip op., at 5–6) (“At least one plaintiff must have standing toseek each form of relief requested in the complaint.”). We agree that a person’s interest in being united with hisrelatives is sufficiently concrete and particularized to formthe basis of an Article III injury in fact. This Court has previously considered the merits of claims asserted byUnited States citizens regarding violations of their personal rights allegedly caused by the Government’s exclu26
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sion of particular foreign nationals. See Kerry v. Din, 576
U. S. ___, ___ (2015) (plurality opinion) (slip op., at 15); id., at ___ (KENNEDY, J., concurring in judgment) (slip op.,at 1); Kleindienst v. Mandel, 408 U. S. 753, 762 (1972).Likewise, one of our prior stay orders in this litigation recognized that an American individual who has “a bonafide relationship with a particular person seeking to enterthe country . . . can legitimately claim concrete hardship ifthat person is excluded.” Trump v. IRAP, 582 U. S., at ___ (slip op., at 13).
The Government responds that plaintiffs’ Establishment Clause claims are not justiciable because the Clause does not give them a legally protected interest in the admission of particular foreign nationals. But that argument—which depends upon the scope of plaintiffs’ Establishment Clause rights—concerns the merits rather than the justiciability of plaintiffs’ claims. We therefore conclude that the individual plaintiffs have Article III standing to challenge theexclusion of their relatives under the Establishment Clause.
B The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof.” Our cases recognize that “[t]he clearest command of the EstablishmentClause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456
U. S. 228, 244 (1982). Plaintiffs believe that the Proclamation violates this prohibition by singling out Muslims for disfavored treatment. The entry suspension, they contend, operates as a “religious gerrymander,” in partbecause most of the countries covered by the Proclamation have Muslim-majority populations. And in their view, deviations from the information-sharing baseline criteria suggest that the results of the multi-agency review were
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“foreordained.” Relying on Establishment Clause precedents concerning laws and policies applied domestically,plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s statedconcerns about vetting protocols and national securitywere but pretexts for discriminating against Muslims.Brief for Respondents 69–73.
At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on theofficial objective of the Proclamation. For example, while a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” thatcalled for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” App. 158. That statement remained on his campaign website until May 2017. Id., at 130–131. Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into thecountry.” Id., at 120–121, 159. Shortly after being elected,when asked whether violence in Europe had affectedhis plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right.” Id., at 123.
One week after his inauguration, the President issued EO–1. In a television interview, one of the President’s campaign advisers explained that when the President “first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” Id., at 125. The adviser said he assembled a group of Members of Congress and lawyersthat “focused on, instead of religion, danger. . . . [Theorder] is based on places where there [is] substantial evidence that people are sending terrorists into our country.” Id., at 229.
Plaintiffs also note that after issuing EO–2 to replace
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EO–1, the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release ofthe Proclamation, he stated that the “travel ban . . . should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct.” Id., at 132–133. More recently, on November 29, 2017, the President re-tweeted links to three anti-Muslim propaganda videos. In response to questions about those videos, the President’s deputy press secretary denied that the President thinksMuslims are a threat to the United States, explaining that “the President has been talking about these securityissues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companionproclamation.” IRAP v. Trump, 883 F. 3d 233, 267 (CA4 2018).
The President of the United States possesses an extraordinary power to speak to his fellow citizens and ontheir behalf. Our Presidents have frequently used thatpower to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they wholive under its protection should demean themselves asgood citizens.” 6 Papers of George Washington 285 (D.Twohig ed. 1996). President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with herwhole strength for your right to have here your ownchurch,” declaring that “[t]his concept is indeed a part ofAmerica.” Public Papers of the Presidents, Dwight D. Eisenhower, June 28, 1957, p. 509 (1957). And just daysafter the attacks of September 11, 2001, President George
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W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike— to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” Public Papers ofthe Presidents, George W. Bush, Vol. 2, Sept. 17, 2001, p. 1121 (2001). Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words.
Plaintiffs argue that this President’s words strike atfundamental standards of respect and tolerance, in violation of our constitutional tradition. But the 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 amatter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.
The case before us differs in numerous respects from theconventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directiveregulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding thescope of the constitutional right and the manner of proof.The Proclamation, moreover, is facially neutral towardreligion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were madebefore the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review.
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C For more than a century, this Court has recognized thatthe admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicialcontrol.” Fiallo v. Bell, 430 U. S. 787, 792 (1977); see Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power.”). Because decisions in these matters may implicate “relations with foreign powers,” or involve “classifications defined in the light of changing political and economic circumstances,”such judgments “are frequently of a character more appropriate to either the Legislature or the Executive.” Mathews v. Diaz, 426 U. S. 67, 81 (1976).Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court hasengaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rightsof a U. S. citizen. In Kleindienst v. Mandel, the AttorneyGeneral denied admission to a Belgian journalist and self-described “revolutionary Marxist,” Ernest Mandel, who had been invited to speak at a conference at StanfordUniversity. 408 U. S., at 756–757. The professors whowished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional “right to receive information” was implicated. Id., at 764–765. But we limited our review to whether the Executive gave a “facially legitimate and bonafide” reason for its action. Id., at 769. Given the authorityof the political branches over admission, we held that“when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justificaCite
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tion” against the asserted constitutional interests of U. S.citizens. Id., at 770.
The principal dissent suggests that Mandel has no bearing on this case, post, at 14, and n. 5 (opinion of SOTOMAYOR, J.) (hereinafter the dissent), but our opinionshave reaffirmed and applied its deferential standard of review across different contexts and constitutional claims. In Din, JUSTICE KENNEDY reiterated that “respect for the political branches’ broad power over the creation and administration of the immigration system” meant that the Government need provide only a statutory citation to explain a visa denial. 576 U. S., at ___ (opinion concurring in judgment) (slip op., at 6). Likewise in Fiallo, we applied Mandel to a “broad congressional policy” giving immigration preferences to mothers of illegitimate children. 430
U. S., at 795. Even though the statute created a “categorical” entry classification that discriminated on the basis of sex and legitimacy, post, at 14, n. 5, the Court concluded that “it is not the judicial role in cases of this sort to probeand test the justifications” of immigration policies. 430
U. S., at 799 (citing Mandel, 408 U. S., at 770). Lower courts have similarly applied Mandel to broad executive action. See Rajah v. Mukasey, 544 F. 3d 427, 433, 438– 439 (CA2 2008) (upholding National Security Entry-Exit Registration System instituted after September 11, 2001).
Mandel’s narrow standard of review “has particularforce” in admission and immigration cases that overlap with “the area of national security.” Din, 576 U. S., at ___ (KENNEDY, J., concurring in judgment) (slip op., at 3). For one, “[j]udicial inquiry into the national-security realm raises concerns for the separation of powers” by intrudingon the President’s constitutional responsibilities in the area of foreign affairs. Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 19) (internal quotation marks omitted).For another, “when it comes to collecting evidence and drawing inferences” on questions of national security, “the
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lack of competence on the part of the courts is marked.” Humanitarian Law Project, 561 U. S., at 34.
The upshot of our cases in this context is clear: “Anyrule 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 ishighly constrained. Mathews, 426 U. S., at 81–82. We need not define the precise contours of that inquiry in this case. A conventional application of Mandel, asking onlywhether the policy is facially legitimate and bona fide,would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiryto extend beyond the facial neutrality of the order. See Tr. of Oral Arg. 16–17, 25–27 (describing Mandel as “the starting point” of the analysis). For our purposes today,we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.That standard of review considers whether the entrypolicy is plausibly related to the Government’s statedobjective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as itcan reasonably be understood to result from a justificationindependent of unconstitutional grounds.5 ——————
5The dissent finds “perplexing” the application of rational basis review in this context. Post, at 15. But what is far more problematic isthe dissent’s assumption that courts should review immigration policies, diplomatic sanctions, and military actions under the de novo “reasonable observer” inquiry applicable to cases involving holidaydisplays and graduation ceremonies. The dissent criticizes applicationof a more constrained standard of review as “throw[ing] the Establishment Clause out the window.” Post, at 16, n. 6. But as the numerous precedents cited in this section make clear, such a circumscribed inquiry applies to any constitutional claim concerning the entry offoreign nationals. See Part IV–C, supra. The dissent can cite no
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D Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policyas illegitimate under rational basis scrutiny. On the few occasions where we have done so, a common thread has been that the laws at issue lack any purpose other than a “bare . . . desire to harm a politically unpopular group.” Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973). In one case, we invalidated a local zoning ordinance that required a special permit for group homes for the intellectually disabled, but not for other facilities suchas fraternity houses or hospitals. We did so on the ground that the city’s stated concerns about (among other things) “legal responsibility” and “crowded conditions” rested on“an irrational prejudice” against the intellectually disabled. Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448–450 (1985) (internal quotation marks omitted).And in another case, this Court overturned a state constitutional amendment that denied gays and lesbians accessto the protection of antidiscrimination laws. The amendment, we held, was “divorced from any factual contextfrom which we could discern a relationship to legitimatestate interests,” and “its sheer breadth [was] so discontinuous with the reasons offered for it” that the initiative seemed “inexplicable by anything but animus.” Romer v. Evans, 517 U. S. 620, 632, 635 (1996). The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is
——————
authority for its proposition that the more free-ranging inquiry it
proposes is appropriate in the national security and foreign affairs
context.
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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.
The Proclamation is expressly premised on legitimatepurposes: preventing entry of nationals who cannot beadequately vetted and inducing other nations to improvetheir practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslimpopulation and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. See 8 U. S. C. §1187(a)(12)(A) (identifying Syria and state sponsors of terrorism such asIran as “countr[ies] or area[s] of concern” for purposes ofadministering the Visa Waiver Program); Dept. of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016)(designating Libya, Somalia, and Yemen as additional countries of concern); see also Rajah, 544 F. 3d, at 433, n. 3 (describing how nonimmigrant aliens from Iran, Libya,Somalia, Syria, and Yemen were covered by the NationalSecurity Entry-Exit Registration System).
The Proclamation, moreover, reflects the results of a worldwide review process undertaken by multiple Cabinetofficials and their agencies. Plaintiffs seek to discredit the findings of the review, pointing to deviations from the review’s baseline criteria resulting in the inclusion ofSomalia and omission of Iraq. But as the Proclamation explains, in each case the determinations were justified bythe distinct conditions in each country. Although Somaliagenerally satisfies the information-sharing component of the baseline criteria, it “stands apart . . . in the degree to
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which [it] lacks command and control of its territory.”Proclamation §2(h)(i). As for Iraq, the Secretary of Homeland Security determined that entry restrictions were not warranted in light of the close cooperative relationshipbetween the U. S. and Iraqi Governments and the country’s key role in combating terrorism in the region. §1(g).It is, in any event, difficult to see how exempting one of the largest predominantly Muslim countries in the region from coverage under the Proclamation can be cited as evidence of animus toward Muslims.
The dissent likewise doubts the thoroughness of themulti-agency review because a recent Freedom of Information Act request shows that the final DHS report “wasa mere 17 pages.” Post, at 19. Yet a simple page count offers little insight into the actual substance of the final report, much less predecisional materials underlying it.See 5 U. S. C. §552(b)(5) (exempting deliberative materialsfrom FOIA disclosure).
More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy isoverbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which “are delicate, complex, and involve large elements of prophecy.” Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948); see also Regan
v. Wald, 468 U. S. 222, 242–243 (1984) (declining invitation to conduct an “independent foreign policy analysis”).While we of course “do not defer to the Government’s reading of the First Amendment,” the Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving “sensitive and weighty interests of national security andforeign affairs.” Humanitarian Law Project, 561 U. S., at
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33–34.6
Three additional features of the entry policy support theGovernment’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries. The Proclamation emphasizes that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks,” Proclamation Preamble, and §1(h), and establishes an ongoing process to engage covered nationsand assess every 180 days whether the entry restrictions should be terminated, §§4(a), (b). In fact, in announcing the termination of restrictions on nationals of Chad, the President also described Libya’s ongoing engagement withthe State Department and the steps Libya is taking “to improve its practices.” Proclamation No. 9723, 83 Fed. Reg. 15939.
Second, for those countries that remain subject to entryrestrictions, the Proclamation includes significant exceptions for various categories of foreign nationals. The policy permits nationals from nearly every covered countryto travel to the United States on a variety of nonimmigrant visas. See, e.g., §§2(b)–(c), (g), (h) (permitting student and exchange visitors from Iran, while restrictingonly business and tourist nonimmigrant entry for nationals of Libya and Yemen, and imposing no restrictions on
—————— 6The dissent recycles much of plaintiffs’ §1182(f) argument to assertthat “Congress has already erected a statutory scheme that fulfills” the President’s stated concern about deficient vetting. Post, at 19–21. But for the reasons set forth earlier, Congress has not in any sense “steppedinto the space and solved the exact problem.” Tr. of Oral Arg. 53. Neither the existing inadmissibility grounds nor the narrow VisaWaiver Program address the failure of certain high-risk countries toprovide a minimum baseline of reliable information. See Part III–B–1, supra.
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nonimmigrant entry for Somali nationals). These carve-outs for nonimmigrant visas are substantial: Over the last three fiscal years—before the Proclamation was in effect—the majority of visas issued to nationals from the covered countries were nonimmigrant visas. Brief for Petitioners
57. The Proclamation also exempts permanent resi- dents and individuals who have been granted asylum. §§3(b)(i), (vi).
Third, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. According to the Proclamation, consular officers are to consider in each admissibility determination whether the alien demonstrates that (1)denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interest of the United States. §3(c)(i); seealso §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to residewith a close family member, obtain urgent medical care, or pursue significant business obligations). On its face, this program is similar to the humanitarian exceptions setforth in President Carter’s order during the Iran hostagecrisis. See Exec. Order No. 12206, 3 CFR 249; Public Papers of the Presidents, Jimmy Carter, Sanctions Against Iran, at 611–612 (1980) (outlining exceptions).The Proclamation also directs DHS and the State Department to issue guidance elaborating upon the circumstancesthat would justify a waiver.7
—————— 7 JUSTICE BREYER focuses on only one aspect of our consideration—thewaiver program and other exemptions in the Proclamation. Citingselective statistics, anecdotal evidence, and a declaration from unrelated litigation, JUSTICE BREYER suggests that not enough individuals arereceiving waivers or exemptions. Post, at 4–8 (dissenting opinion). Yet even if such an inquiry were appropriate under rational basis review, the evidence he cites provides “but a piece of the picture,” post, at 6, and does not affect our analysis.
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Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage thedissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis ofrace, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26–28. The entry suspension is an act that iswell within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating anotherwise valid Proclamation.
The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day itwas decided, has been overruled in the court of history,and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).
* * * Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.
V Because plaintiffs have not shown that they are likely tosucceed on the merits of their claims, we reverse the grant of the preliminary injunction as an abuse of discretion. Winter v. Natural Resources Defense Council, Inc., 555
U. S. 7, 32 (2008). The case now returns to the lower courts for such further proceedings as may be appropriate.
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Opinion of the Court
Our disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court.
The judgment of the Court of Appeals is reversed, andthe case is remanded for further proceedings consistentwith this opinion.
It is so ordered.
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KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 17–965
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE KENNEDY, concurring.
I join the Court’s opinion in full.
There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to areligion. Whether judicial proceedings may properly continue in this case, in light of the substantial deferencethat is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.
In all events, it is appropriate to make this further observation. 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 Constitutionand the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even
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comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.
The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. 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. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.
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THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 17–965
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
THOMAS, J., concurring.
I join the Court’s opinion, which highlights just a few ofthe many problems with the plaintiffs’ claims. There are several more. Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. See Webster v. Doe, 486 U. S. 592, 600 (1988). Nor could it, since the President has inherent authority to excludealiens from the country. See United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542–543 (1950); accord, Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018) (THOMAS, J., dissenting) (slip op., at 13–14). Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. See Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 6); Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 52–53 (2004) (THOMAS, J., concurring in judgment). The plaintiffscannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directedat aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990). And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive.
Merits aside, I write separately to address the remedy
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that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred theGovernment from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions thatprohibit the Executive Branch from applying a law orpolicy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common.1 District courts, including the one here, have begunimposing universal injunctions without considering theirauthority to grant such sweeping relief. These injunctionsare beginning to take a toll on the federal court system—preventing legal questions from percolating through thefederal courts, encouraging forum shopping, and making every case a national emergency for the courts and for theExecutive Branch.
I am skeptical that district courts have the authority toenter universal injunctions. These injunctions did notemerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits onequitable relief and the power of Article III courts. If their popularity continues, this Court must address theirlegality.
I If district courts have any authority to issue universalinjunctions, that authority must come from a statute orthe Constitution. See Missouri v. Jenkins, 515 U. S. 70
—————— 1“Nationwide injunctions” is perhaps the more common term. But I use the term “universal injunctions” in this opinion because it is moreprecise. These injunctions are distinctive because they prohibit theGovernment from enforcing a policy with respect to anyone, includingnonparties—not because they have wide geographic breadth. An injunction that was properly limited to the plaintiffs in the case would not be invalid simply because it governed the defendant’s conduct nationwide.
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THOMAS, J., concurring
124 (1995) (THOMAS, J., concurring). No statute expresslygrants district courts the power to issue universal injunctions.2 So the only possible bases for these injunctions are a generic statute that authorizes equitable relief or the courts’ inherent constitutional authority. Neither of those sources would permit a form of injunctive relief that is “[in]consistent with our history and traditions.” Ibid.
A This Court has never treated general statutory grants of equitable authority as giving federal courts a freewheeling power to fashion new forms of equitable remedies. Rather, it has read such statutes as constrained by “the body of law which had been transplanted to this country from the English Court of Chancery” in 1789. Guaranty Trust Co.
v.
York, 326 U. S. 99, 105 (1945). As Justice Story explained, this Court’s “settled doctrine” under such statutesis that “the remedies in equity are to be administered . . . according to the practice of courts of equity in [England].” Boyle v. Zacharie & Turner, 6 Pet. 648, 658 (1832). More recently, this Court reiterated that broad statutory grants of equitable authority give federal courts “‘an authority toadminister in equity suits the principles of the system ofjudicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.’” Grupo Mexicano de Desarrollo S. A. v. Alliance Bond Fund, Inc., 527
U.
S. 308, 318 (1999) (Scalia, J.) (quoting Atlas Life Ins. Co. v. W. I. Southern, Inc., 306 U. S. 563, 568 (1939)).
—————— 2Even if Congress someday enacted a statute that clearly and expressly authorized universal injunctions, courts would need to consider whether that statute complies with the limits that Article III places on the authority of federal courts. See infra, at 7–8.
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B The same is true of the courts’ inherent constitutional authority to grant equitable relief, assuming any such authority exists. See Jenkins, 515 U. S., at 124 (THOMAS, J., concurring). This authority is also limited by the traditional rules of equity that existed at the founding. The scope of the federal courts’ equitable authorityunder the Constitution was a point of contention at the founding, and the “more limited construction” of thatpower prevailed. Id., at 126. The founding generation viewed equity “with suspicion.” Id., at 128. Several anti-Federalists criticized the Constitution’s extension of the federal judicial power to “Case[s] in . . . Equity,” Art. III, §2, as “giv[ing] the judge a discretionary power.” Letters from The Federal Farmer No. XV (Jan. 18, 1788), in 2 TheComplete Anti-Federalist 315, 322 (H. Storing ed. 1981). That discretionary power, the anti-Federalists alleged, would allow courts to “explain the constitution according to the reasoning spirit of it, without being confined to thewords or letter.” Essays of Brutus No. XI (Jan. 31, 1788), in id., at 417, 419–420. The Federalists responded to thisconcern by emphasizing the limited nature of equity. Hamilton explained that the judiciary would be “bounddown by strict rules and precedents which serve to define and point out their duty in every particular case thatcomes before them.” The Federalist No. 78, p. 471 (C.Rossiter ed. 1961) (Federalist). Although the purpose of a court of equity was “to give relief in extraordinary cases, which are exceptions to general rules,” “the principles bywhich that relief is governed are now reduced to a regular system.” Id. No. 83 at 505 (emphasis deleted).The Federalists’ explanation was consistent with how equity worked in 18th-century England. English courts ofequity applied established rules not only when they decidedthe merits, but also when they fashioned remedies. Like other aspects of equity, “the system of relief adminisCite
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tered by a court of equity” had been reduced “into a regular science.” 3 W. Blackstone, Commentaries on the Laws of England 440–441 (1768) (Blackstone). As early as 1768,Blackstone could state that the “remedy a suitor is entitled to expect” could be determined “as readily and with asmuch precision, in a court of equity as in a court of law.” Id., at 441. Although courts of equity exercised remedial “discretion,” that discretion allowed them to deny or tailora remedy despite a demonstrated violation of a right, not to expand a remedy beyond its traditional scope. See G. Keeton, An Introduction to Equity 117–118 (1938).
In short, whether the authority comes from a statute or the Constitution, district courts’ authority to provide equitable relief is meaningfully constrained. This authority must comply with longstanding principles of equity that predate this country’s founding.
II Universal injunctions do not seem to comply with those principles. These injunctions are a recent development,emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And theyappear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.Equity originated in England as a means for the Crownto dispense justice by exercising its sovereign authority.See Adams, The Origins of English Equity, 16 Colum.
L. Rev. 87, 91 (1916). Petitions for equitable relief werereferred to the Chancellor, who oversaw cases in equity.See 1 S. Symon’s, Pomeroy’s, Equity Jurisprudence §33(5th ed. 1941) (Pomeroy); G. McDowell, Equity and the Constitution 24 (1982). The Chancellor’s equitable jurisdiction was based on the “reserve of justice in the king.” F. Maitland, Equity 3 (2d ed. 1936); see also 1 Pomeroy §33,at 38 (describing the Chancellor’s equitable authority asan “extraordinary jurisdiction—that of Grace—by delega6
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tion” from the King). Equity allowed the sovereign toafford discretionary relief to parties where relief would not have been available under the “rigors of the common law.” Jenkins, supra, at 127 (opinion of THOMAS, J.).
The English system of equity did not contemplate universal injunctions. As an agent of the King, the Chancellor had no authority to enjoin him. See Bray, MultipleChancellors: Reforming the National Injunction, 131 Harv.
L. Rev. 417, 425 (2017) (Bray). The Chancellor could not give “any relief against the king, or direct any act to bedone by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trustee.” 3 Blackstone 428. The Attorney General could besued in Chancery, but not in cases that “ ‘immediatelyconcerned’” the interests of the Crown. Bray 425 (citing 1
E. Daniell, The Practice of the High Court of Chancery 138 (2d ed. 1845)). American courts inherited this tradition. See J. Story, Commentaries on Equity Pleadings §69 (1838) (Story).
Moreover, as a general rule, American courts of equitydid not provide relief beyond the parties to the case. If their injunctions advantaged nonparties, that benefit wasmerely incidental. Injunctions barring public nuisances were an example. While these injunctions benefited third parties, that benefit was merely a consequence of providing relief to the plaintiff. Woolhandler & Nelson, Does History Defeat Standing Doctrine? 102 Mich. L. Rev. 689,702 (2004) (Woolhandler & Nelson); see Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518, 564 (1852) (explaining that a private “injury makes [a public nuisance] a private nuisance to the injured party”).
True, one of the recognized bases for an exercise ofequitable power was the avoidance of “multiplicity of suits.” Bray 426; accord, 1 Pomeroy §243. Courts would employ “bills of peace” to consider and resolve a number of suits in a single proceeding. Id., §246. And some authoriCite
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ties stated that these suits could be filed by one plaintiffon behalf of a number of others. Id., §251. But the “general rule” was that “all persons materially interested . . . in the subject-matter of a suit, are to be made parties to it . . . , however numerous they may be, so that there may bea complete decree, which shall bind them all.” Story §72,at 61 (emphasis added). And, in all events, these “protoclass action[s]” were limited to a small group of similarlysituated plaintiffs having some right in common. Bray426–427; see also Story §120, at 100 (explaining that suchsuits were “always” based on “a common interest or a common right”).
American courts’ tradition of providing equitable reliefonly to parties was consistent with their view of the nature of judicial power. For most of our history, courtsunderstood judicial power as “fundamentall[y] the powerto render judgments in individual cases.” Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___ (2018) (THOMAS, J., concurring) (slip op., at 2–3). They didnot believe that courts could make federal policy, and theydid not view judicial review in terms of “striking down” laws or regulations. See id., at ___–___ (slip op., at 3–4). Misuses of judicial power, Hamilton reassured the people of New York, could not threaten “the general liberty of the people” because courts, at most, adjudicate the rights of“individual[s].” Federalist No. 78, at 466.
The judiciary’s limited role was also reflected in this Court’s decisions about who could sue to vindicate certain rights. See Spokeo, Inc. v. Robins, 578 U. S. ___, ___–___ (2016) (THOMAS, J., concurring) (slip op., at 2–4). A plaintiff could not bring a suit vindicating public rights—i.e., rights held by the community at large—without a showingof some specific injury to himself. Id., at ___–___ (slip op., at 3–4). And a plaintiff could not sue to vindicate the private rights of someone else. See Woolhandler & Nelson 715–716. Such claims were considered to be beyond the
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authority of courts. Id., at 711–717.
This Court has long respected these traditional limits on equity and judicial power. See, e.g., Scott v. Donald, 165
U. S. 107, 115 (1897) (rejecting an injunction based on thetheory that the plaintiff “so represents [a] class” whose rights were infringed by a statute as “too conjectural tofurnish a safe basis upon which a court of equity ought togrant an injunction”). Take, for example, this Court’s decision in Massachusetts v. Mellon, 262 U. S. 447 (1923).There, a taxpayer sought to enjoin the enforcement of anappropriation statute. The Court noted that this kind of dispute “is essentially a matter of public and not of individual concern.” Id., at 487. A general interest in enjoining implementation of an illegal law, this Court explained, provides “no basis . . . for an appeal to the preventivepowers of a court of equity.” Ibid. Courts can review the constitutionality of an act only when “a justiciable issue”requires it to decide whether to “disregard an unconstitutional enactment.” Id., at 488. If the statute is unconstitutional, then courts enjoin “not the execution of the statute, but the acts of the official.” Ibid. Courts cannot issue an injunction based on a mere allegation “that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional.” Ibid. “To do so would be not to decide a judicial controversy.” Id., at 488–489.
By the latter half of the 20th century, however, some jurists began to conceive of the judicial role in terms ofresolving general questions of legality, instead of addressing those questions only insofar as they are necessary toresolve individual cases and controversies. See Bray 451. That is when what appears to be “the first [universal] injunction in the United States” emerged. Bray 438. In Wirtz v. Baldor Elec. Co., 337 F. 2d 518 (CADC 1963), the Court of Appeals for the District of Columbia Circuit addressed a lawsuit challenging the Secretary of Labor’s
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THOMAS, J., concurring
determination of the prevailing minimum wage for a particular industry. Id., at 520. The D. C. Circuit concluded that the Secretary’s determination was unsupported,but remanded for the District Court to assess whether any of the plaintiffs had standing to challenge it. Id., at 521–535. The D. C. Circuit also addressed the question ofremedy, explaining that if a plaintiff had standing to suethen “the District Court should enjoin . . . the Secretary’sdetermination with respect to the entire industry.” Id., at 535 (emphasis added). To justify this broad relief, the
D. C. Circuit explained that executive officers shouldhonor judicial decisions “in all cases of essentially the same character.” Id., at 534. And it noted that, once a court has decided an issue, it “would ordinarily give thesame relief to any individual who comes to it with an essentially similar cause of action.” Ibid. The D. C. Circuit added that the case was “clearly a proceeding in which those who have standing are here to vindicate the public interest in having congressional enactments properly interpreted and applied.” Id., at 534–535.
Universal injunctions remained rare in the decadesfollowing Wirtz. See Bray 440–445. But recently, they have exploded in popularity. See id., at 457–459. Some scholars have criticized the trend. See generally id., at 457–465; Morley, Nationwide Injunctions, Rule 23(b)(2),and the Remedial Powers of the Lower Courts, 97 B. U.
L. Rev. 615, 633–653 (2017); Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 521–538 (2016).
No persuasive defense has yet been offered for the practice. Defenders of these injunctions contend that theyensure that individuals who did not challenge a law aretreated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch. See Amdur & Hausman, Nationwide
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Injunctions and Nationwide Harm, 131 Harv. L. Rev. Forum 49, 51, 54 (2017); Malveaux, Class Actions, CivilRights, and the National Injunction, 131 Harv. L. Rev.Forum 56, 57, 60–62 (2017). But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. They atbest “boi[l] down to a policy judgment” about how powersought to be allocated among our three branches of government. Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___ (2015) (THOMAS, J., concurring in judgment) (slip op.,at 23). But the people already made that choice when they ratified the Constitution.
* * * In sum, universal injunctions are legally and historicallydubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.
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BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 17–965
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE BREYER, with whom JUSTICE KAGAN joins,dissenting.
The question before us is whether Proclamation No.9645 is lawful. If its promulgation or content was significantly affected by religious animus against Muslims, it would violate the relevant statute or the First Amendment itself. See 8 U. S. C. §1182(f) (requiring “find[ings]” that persons denied entry “would be detrimental to the interests of the United States”); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (First Amendment); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___ (2018) (same); post, at 2–4 (SOTOMAYOR, J., dissenting). If, however, its sole ratio decidendi was one of national security, then it would be unlikely to violate either the statute or the Constitution. Which is it? Members of the Court principally disagree about the answer to this question, i.e., about whether or the extent to which religious animus played a significant role in the Proclamation’s promulgation or content.
In my view, the Proclamation’s elaborate system of exemptions and waivers can and should help us answer this question. That system provides for case-by-case consideration of persons who may qualify for visas despitethe Proclamation’s general ban. Those persons includelawful permanent residents, asylum seekers, refugees,
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students, children, and numerous others. There are likely many such persons, perhaps in the thousands. And I believe it appropriate to take account of their Proclamation-granted status when considering the Proclamation’s lawfulness. The Solicitor General asked us to consider the Proclamation “as” it is “written” and “as” it is “applied,” waivers and exemptions included. Tr. of Oral Arg. 38. Hewarned us against considering the Proclamation’s lawfulness “on the hypothetical situation that [the Proclamation] is what it isn’t,” ibid., while telling us that its waiver and exemption provisions mean what they say: The Proclamation does not exclude individuals from the United States “if they meet the criteria” for a waiver or exemption. Id., at 33.
On the one hand, if the Government is applying theexemption and waiver provisions as written, then itsargument for the Proclamation’s lawfulness is strengthened. For one thing, the Proclamation then resembles more closely the two important Presidential precedents onpoint, President Carter’s Iran order and President Reagan’s Cuba proclamation, both of which contained similar categories of persons authorized to obtain case-bycase exemptions. Ante, at 36–37; Exec. Order No. 12172, 44 Fed. Reg. 67947 (1979), as amended by Exec. Order No.12206, 45 Fed. Reg. 24101 (1980); Presidential Proclamation No. 5517, 51 Fed. Reg. 30470 (1986). For another thing, the Proclamation then follows more closely the basicstatutory scheme, which provides for strict case-by-casescrutiny of applications. It would deviate from that system, not across the board, but where circumstances mayrequire that deviation.
Further, since the case-by-case exemptions and waiversapply without regard to the individual’s religion, application of that system would help make clear that the Proclamation does not deny visas to numerous Muslim individuals (from those countries) who do not pose a security
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threat. And that fact would help to rebut the First Amendment claim that the Proclamation rests upon anti-Muslim bias rather than security need. Finally, of course,the very fact that Muslims from those countries wouldenter the United States (under Proclamation-providedexemptions and waivers) would help to show the samething.
On the other hand, if the Government is not applyingthe system of exemptions and waivers that the Proclamation contains, then its argument for the Proclamation’slawfulness becomes significantly weaker. For one thing,the relevant precedents—those of Presidents Carter and Reagan—would bear far less resemblance to the present Proclamation. Indeed, one might ask, if those two Presidents thought a case-by-case exemption system appropriate, what is different about present circumstances that would justify that system’s absence?
For another thing, the relevant statute requires that there be “find[ings]” that the grant of visas to excludedpersons would be “detrimental to the interests of theUnited States.” §1182(f). Yet there would be no such findings in respect to those for whom the Proclamation itself provides case-by-case examination (followed by thegrant of a visa in appropriate cases).
And, perhaps most importantly, if the Government isnot applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslimban,” rather than a “security-based” ban, becomes much stronger. How could the Government successfully claimthat the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims whomeet the Proclamation’s own security terms would supportthe view that the Government excludes them for reasons based upon their religion.
Unfortunately there is evidence that supports the sec4
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ond possibility, i.e., that the Government is not applyingthe Proclamation as written. The Proclamation providesthat the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consularofficers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued. The only potentially relevant document I have found consists of a set of State Department answers to certain Frequently Asked Questions, but this document simplyrestates the Proclamation in plain language for visa applicants. It does not provide guidance for consular officers as to how they are to exercise their discretion. See Dept. ofState, FAQs on the Presidential Proclamation, https://travel.state.gov/content/travel/en/us-visas/visa-informationresources/presidential-proclamation-archive/2017-12-04Presidential-Proclamation.html (all Internet materials aslast visited June 25, 2018).
An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waiverswere approved out of 6,555 eligible applicants. Letter from M. Waters, Assistant Secretary Legislative Affairs, toSen. Van Hollen (Feb. 22, 2018). In its reply brief, theGovernment claims that number increased from 2 to 430 during the first four months of implementation. ReplyBrief 17. That number, 430, however, when comparedwith the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, insuch categories as persons requiring medical treatment,academic visitors, students, family members, and othersbelonging to groups that, when considered as a group(rather than case by case), would not seem to pose security threats.
Amici have suggested that there are numerous applicants who could meet the waiver criteria. For instance, the Proclamation anticipates waivers for those with “sigCite
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nificant business or professional obligations” in the UnitedStates, §3(c)(iv)(C), and amici identify many scholars whowould seem to qualify. Brief for Colleges and Universities as Amici Curiae 25–27; Brief for American Council on Education et al. as Amici Curiae 20 (identifying more than2,100 scholars from covered countries); see also Brief for Massachusetts Technology Leadership Council, Inc., as Amicus Curiae 14–15 (identifying technology and businessleaders from covered countries). The Proclamation also anticipates waivers for those with a “close family member (e.g., a spouse, child, or parent)” in the United States,§3(c)(iv)(D), and amici identify many such individuals affected by the Proclamation. Brief for Labor Organizations as Amici Curiae 15–18 (identifying children and other relatives of U. S. citizens). The Pars Equality Center identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria. See Brief for Pars Equality Center et al. as Amici Curiae 12–28.
Other data suggest the same. The Proclamation does not apply to asylum seekers or refugees. §§3(b)(vi), 6(e). Yet few refugees have been admitted since the Proclamation took effect. While more than 15,000 Syrian refugeesarrived in the United States in 2016, only 13 have arrived since January 2018. Dept. of State, Bureau of Population,Refugees, and Migration, Interactive Reporting, Refugee Processing Center, http://ireports.wrapsnet.org. Similarlyfew refugees have been admitted since January from Iran (3), Libya (1), Yemen (0), and Somalia (122). Ibid.
The Proclamation also exempts individuals applying for several types of nonimmigrant visas: lawful permanent residents, parolees, those with certain travel documents,dual nationals of noncovered countries, and representatives of governments or international organizations.§§3(b)(i)–(v). It places no restrictions on the vast majority
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of student and exchange visitors, covering only those fromSyria, which provided 8 percent of student and exchangevisitors from the five countries in 2016. §§2(b)–(h); see Dept. of State, Report of the Visa Office 2016, Table XVII Nonimmigrant Visas Issued Fiscal Year 2016 (Visa Report2016 Table XVII). Visitors from Somalia are eligible for any type of nonimmigrant visa, subject to “additionalscrutiny.” §2(h)(ii). If nonimmigrant visa applications under the Proclamation resemble those in 2016, 16 percent of visa applicants would be eligible for exemptions. See Visa Report 2016 Table XVII.
In practice, however, only 258 student visas were issuedto applicants from Iran (189), Libya (29), Yemen (40), andSomalia (0) in the first three months of 2018. See Dept. ofState, Nonimmigrant Visa Issuances by Nationality, Jan., Feb., and Mar. 2018. This is less than a quarter of the volume needed to be on track for 2016 student visa levels. And only 40 nonimmigrant visas have been issued to Somali nationals, a decrease of 65 percent from 2016. Ibid.; see Visa Report 2016 Table XVII. While this is but a piece of the picture, it does not provide grounds for confidence.
Anecdotal evidence further heightens these concerns. For example, one amicus identified a child with cerebral palsy in Yemen. The war had prevented her from receiving her medication, she could no longer move or speak,and her doctors said she would not survive in Yemen. Her visa application was denied. Her family received a form with a check mark in the box unambiguously confirmingthat “‘a waiver will not be granted in your case.’” Letter from L. Blatt to S. Harris, Clerk of Court (May 1, 2018).But after the child’s case was highlighted in an amicus brief before this Court, the family received an update from the consular officer who had initially denied the waiver. It turns out, according to the officer, that she had all alongdetermined that the waiver criteria were met. But, the
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officer explained, she could not relay that information at the time because the waiver required review from a supervisor, who had since approved it. The officer said that the family’s case was now in administrative processing and that she was attaching a “‘revised refusal letter indicating the approval of the waiver.’” Ibid. The new form did not actually approve the waiver (in fact, the form contains nobox saying “granted”). But a different box was now checked, reading: “‘The consular officer is reviewing your eligibility for a waiver under the Proclamation. . . . This can be a lengthy process, and until the consular officer canmake an individualized determination of [the relevant] factors, your visa application will remain refused underSection 212(f) [of the Proclamation].’” Ibid. One is left to wonder why this second box, indicating continuing review,had not been checked at the outset if in fact the child’s case had remained under consideration all along. Thoughthis is but one incident and the child was admitted after considerable international attention in this case, it provides yet more reason to believe that waivers are not being processed in an ordinary way.
Finally, in a pending case in the Eastern District of NewYork, a consular official has filed a sworn affidavit asserting that he and other officials do not, in fact, have discretion to grant waivers. According to the affidavit, consularofficers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’” See Decl. of Christopher Richardson, Alharbi v. Miller, No. 1:18-cv-2435 (June 1, 2018), pp. 3–4. Another reportsimilarly indicates that the U. S. Embassy in Djibouti,which processes visa applications for citizens of Yemen,received instructions to grant waivers “only in rare cases of imminent danger,” with one consular officer reportedlytelling an applicant that “‘[e]ven for infants, we would need to see some evidence of a congenital heart defect oranother medical issue of that degree of difficulty
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that . . . would likely lead to the child’s developmentalharm or death.’” Center for Constitutional Rights and theRule of Law Clinic, Yale Law School, Window Dressing theMuslim Ban: Reports of Waivers and Mass Denials fromYemeni-American Families Stuck in Limbo 18 (2018).
Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assurance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that answers to the “exemption and waiver” questions may provide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction ineffect while the matter is litigated. Regardless, theCourt’s decision today leaves the District Court free toexplore these issues on remand.
If this Court must decide the question without thisfurther litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two executive orders preceding the Proclamation, along with theother statements also set forth in JUSTICE SOTOMAYOR’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent.
_________________
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SUPREME COURT OF THE UNITED STATES
No. 17–965
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL., PETITIONERS v. HAWAII, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 26, 2018]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting.
The United States of America is a Nation built upon thepromise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly andunequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated byanti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise byignoring the facts, misconstruing our legal precedent, andturning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and ourprecedent, I dissent.
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I
Plaintiffs challenge the Proclamation on various grounds, both statutory and constitutional. Ordinarily,when a case can be decided on purely statutory grounds,we strive to follow a “prudential rule of avoiding constitutional questions.” Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 8 (1993). But that rule of thumb is far from categorical, and it has limited application where, ashere, the constitutional question proves far simpler than the statutory one. Whatever the merits of plaintiffs’ complex statutory claims, the Proclamation must be enjoined for a more fundamental reason: It runs afoul of the Establishment Clause’s guarantee of religious neutrality.
A The Establishment Clause forbids government policies“respecting an establishment of religion.” U. S. Const., Amdt. 1. The “clearest command” of the Establishment Clause is that the Government cannot favor or disfavor one religion over another. Larson v. Valente, 456 U. S. 228, 244 (1982); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 532 (1993) (“[T]he First Amendment forbids an official purpose to disapprove of a particular religion”); Edwards v. Aguillard, 482 U. S. 578, 593 (1987) (“The Establishment Clause . . . forbids alike the preference of a religious doctrine or the prohibition oftheory which is deemed antagonistic to a particular dogma”(internal quotation marks omitted)); Lynch v. Donnelly, 465 U. S. 668, 673 (1984) (noting that the Establishment Clause “forbids hostility toward any [religion],” because “such hostility would bring us into ‘war with our nationaltradition as embodied in the First Amendmen[t]’”); Epperson v. Arkansas, 393 U. S. 97, 106 (1968) (“[T]he State may not adopt programs or practices . . . which aid or oppose any religion. This prohibition is absolute” (citation and internal quotation marks omitted)). Consistent with
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that clear command, this Court has long acknowledgedthat governmental actions that favor one religion “inevitabl[y]” foster “the hatred, disrespect and even contempt of those who [hold] contrary beliefs.” Engel v. Vitale, 370
U. S. 421, 431 (1962). That is so, this Court has held, because such acts send messages to members of minority faiths “‘that they are outsiders, not full members of the political community.’” Santa Fe Independent School Dist.
v. Doe, 530 U. S. 290, 309 (2000). To guard against thisserious harm, the Framers mandated a strict “principle of denominational neutrality.” Larson, 456 U. S., at 246; Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 703 (1994) (recognizing the role of courts in“safeguarding a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion”).
“When the government acts with the ostensible and predominant purpose” of disfavoring a particular religion,“it violates that central Establishment Clause value of official religious neutrality, there being no neutralitywhen the government’s ostensible object is to take sides.” McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 860 (2005). To determine whether plaintiffshave 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. See id., at 862, 866; accord, Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 19).
In answering that question, this Court has generally considered the text of the government policy, its operation,and any available evidence regarding “the historical background of the decision under challenge, the specific seriesof events leading to the enactment or official policy inquestion, and the legislative or administrative history, including contemporaneous statements made by” the
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decisionmaker. Lukumi, 508 U. S., at 540 (opinion of KENNEDY, J.); McCreary, 545 U. S., at 862 (courts must evaluate “text, legislative history, and implementation . . . , or comparable official act” (internal quotation marksomitted)). At the same time, however, courts must take care not to engage in “any judicial psychoanalysis of adrafter’s heart of hearts.” Id., at 862.
B 1
Although the majority briefly recounts a few of the statements and background events that form the basis ofplaintiffs’ constitutional challenge, ante, at 27–28, that highly abridged account does not tell even half of the story. See Brief for The Roderick & Solange MacArthur Justice Center as Amicus Curiae 5–31 (outlining President Trump’s public statements expressing animus toward Islam). 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.
During his Presidential campaign, then-candidate Donald Trump pledged that, if elected, he would ban Muslimsfrom entering the United States. Specifically, on December 7, 2015, he issued a formal statement “calling for atotal and complete shutdown of Muslims entering theUnited States.” App. 119. That statement, which remained on his campaign website until May 2017 (several months into his Presidency), read in full:
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what isgoing on. According to Pew Research, among others,there is great hatred towards Americans by largesegments of the Muslim population. Most recently, a poll from the Center for Security Policy released data
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showing ‘25% of those polled agreed that violenceagainst Americans here in the United States is justified as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America should have the choice of being governed according to Shariah.’ Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.
“Mr. Trum[p] stated, ‘Without looking at the various
polling data, it is obvious to anybody the hatred is
beyond comprehension. Where this hatred comes
from and why we will have to determine. Until we are
able to determine and understand this problem and
the dangerous threat it poses, our country cannot be
the victims of the horrendous attacks by people that
believe only in Jihad, and have no sense of reason or
respect of human life. If I win the election for President,
we are going to Make America Great Again.’—
Donald J. Trump.” Id., at 158; see also id., at 130–
131.
On December 8, 2015, Trump justified his proposalduring a television interview by noting that President Franklin D. Roosevelt “did the same thing” with respect to the internment of Japanese Americans during World War
II. Id., at 120. In January 2016, during a Republicanprimary debate, Trump was asked whether he wanted to “rethink [his] position” on “banning Muslims from entering the country.” Ibid. He answered, “No.” Ibid. A month later, at a rally in South Carolina, Trump told an apocryphal story about United States General John J.Pershing killing a large group of Muslim insurgents in thePhilippines with bullets dipped in pigs’ blood in the early 1900’s. Id., at 163–164. In March 2016, he expressed hisbelief that “Islam hates us. . . . [W]e can’t allow people
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coming into this country who have this hatred of the UnitedStates . . . [a]nd of people that are not Muslim.” Id., at 120–121. That same month, Trump asserted that “[w]e’rehaving problems with the Muslims, and we’re having problems with Muslims coming into the country.” Id., at
121. He therefore called for surveillance of mosques in the United States, blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” Ibid.; id., at 164. A day later, he opined that Muslims “donot respect us at all” and “don’t respect a lot of the thingsthat are happening throughout not only our country, butthey don’t respect other things.” Ibid.
As Trump’s presidential campaign progressed, he beganto describe his policy proposal in slightly different terms. In June 2016, for instance, he characterized the policy proposal as a suspension of immigration from countries “where there’s a proven history of terrorism.” Id., at 121. He also described the proposal as rooted in the need tostop “importing radical Islamic terrorism to the West through a failed immigration system.” Id., at 121–122. Asked in July 2016 whether he was “pull[ing] back from” his pledged Muslim ban, Trump responded, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion.” Id., at 122–123. He then explained that heused different terminology because “[p]eople were so upset when [he] used the word Muslim.” Id., at 123.
A month before the 2016 election, Trump reiterated that his proposed “Muslim ban” had “morphed into a[n] extreme vetting from certain areas of the world.” Ibid. Then, on December 21, 2016, President-elect Trump was asked whether he would “rethink” his previous “plans tocreate a Muslim registry or ban Muslim immigration.” Ibid. He replied: “You know my plans. All along, I’ve proven to be right.” Ibid.
On January 27, 2017, one week after taking office,President Trump signed Executive Order No. 13769, 82
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Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, President Trump read the title,looked up, and said “We all know what that means.” App.
124. That same day, President Trump explained to themedia that, under EO–1, Christians would be given prior- ity for entry as refugees into the United States. In particular, he bemoaned the fact that in the past, “[i]f you were aMuslim [refugee from Syria] you could come in, but if youwere a Christian, it was almost impossible.” Id., at 125. Considering that past policy “very unfair,” President Trump explained that EO–1 was designed “to help” the Christians in Syria. Ibid. The following day, one of President Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it,he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” Ibid.
On February 3, 2017, the United States District Court for the Western District of Washington enjoined the enforcement of EO–1. See Washington v. Trump, 2017 WL 462040, *3. The Ninth Circuit denied the Government’s request to stay that injunction. Washington v. Trump, 847
F. 3d 1151, 1169 (2017) (per curiam). Rather than appealthe Ninth Circuit’s decision, the Government declined to continue defending EO–1 in court and instead announced that the President intended to issue a new executive order to replace EO–1.
On March 6, 2017, President Trump issued that new executive order, which, like its predecessor, imposed temporary entry and refugee bans. See Exec. Order No. 13,780, 82 Fed. Reg. 13209 (EO–2). One of the President’s senior advisers publicly explained that EO–2 would “have the same basic policy outcome” as EO–1, and that any
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changes would address “very technical issues that werebrought up by the court.” App. 127. After EO–2 was issued, the White House Press Secretary told reporters that, by issuing EO–2, President Trump “continue[d] to deliver on . . . his most significant campaign promises.” Id., at 130. That statement was consistent with President Trump’s own declaration that “I keep my campaign promises, and our citizens will be very happy when they see theresult.” Id., at 127–128.
Before EO–2 took effect, federal District Courts in Hawaii and Maryland enjoined the order’s travel and refugee bans. See Hawaii v. Trump, 245 F. Supp. 3d 1227, 1239 (Haw. 2017); International Refugee Assistance Project (IRAP) v. Trump, 241 F. Supp. 3d 539, 566 (Md. 2017).The Fourth and Ninth Circuits upheld those injunctions insubstantial part. IRAP v. Trump, 857 F. 3d 554, 606 (CA4 2017) (en banc); Hawaii v. Trump, 859 F. 3d 741, 789 (CA9 2017) (per curiam). In June 2017, this Court granted the Government’s petition for certiorari and issued a per curiam opinion partially staying the District Courts’ injunctions pending further review. In particular, the Courtallowed EO–2’s travel ban to take effect except as to “foreign nationals who have a credible claim of a bona fiderelationship with a person or entity in the United States.” Trump v. IRAP, 582 U. S. ___, ___ (2017) (slip op., at 12).
While litigation over EO–2 was ongoing, PresidentTrump repeatedly made statements alluding to a desire to keep Muslims out of the country. For instance, he said at a rally of his supporters that EO–2 was just a “watereddown version of the first one” and had been “tailor[ed]” atthe behest of “the lawyers.” App. 131. He further added that he would prefer “to go back to the first [executiveorder] and go all the way” and reiterated his belief that it was “very hard” for Muslims to assimilate into Western culture. Id., at 131–132. During a rally in April 2017,President Trump recited the lyrics to a song called “The
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Snake,” a song about a woman who nurses a sick snakeback to health but then is attacked by the snake, as awarning about Syrian refugees entering the country. Id., at 132, 163. And in June 2017, the President stated on Twitter that the Justice Department had submitted a “watered down, politically correct version” of the “original Travel Ban” “to S[upreme] C[ourt].”1 Id., at 132. The President went on to tweet: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” Id., at 132–133. He added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” Id., at 133. Then, on August 17, 2017, President Trump issued yet another tweet about Islam, once more referencing the story about General Pershing’s massacre of Muslims in the Philippines: “Study what General Pershing . . .did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” IRAP v. Trump, 883 F. 3d 233, 267 (CA4 2018) (IRAP II) (en banc) (alterations in original).
In September 2017, President Trump tweeted that “[t]hetravel ban into the United States should be far larger,tougher and more specific—but stupidly, that would not be politically correct!” App. 133. Later that month, on September 24, 2017, President Trump issued Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation), which restricts entry of certain nationals fromsix Muslim-majority countries. On November 29, 2017, President Trump “retweeted” three anti-Muslim videos, entitled “Muslim Destroys a Statue of Virgin Mary!”,“Islamist mob pushes teenage boy off roof and beats him to death!”, and “Muslim migrant beats up Dutch boy on
—————— 1According to the White House, President Trump’s statements on Twitter are “official statements.” App. 133.
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crutches!”2 IRAP II, 883 F. 3d, at 267. Those videos were initially tweeted by a British political party whose mission is to oppose “all alien and destructive politic[al] or religious doctrines, including . . . Islam.” Ibid. When asked about these videos, the White House Deputy Press Secretary connected them to the Proclamation, responding that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companionproclamation.” Ibid.
2 As the majority correctly notes, “the issue before us is not whether to denounce” these offensive statements. Ante, at 29. Rather, the dispositive and narrow questionhere is whether a reasonable observer, presented with all “openly available data,” the text and “historical context” of the Proclamation, and the “specific sequence of events” leading to it, would conclude that the primary purpose ofthe Proclamation is to disfavor Islam and its adherents by excluding them from the country. See McCreary, 545
U. S., at 862–863. The answer is unquestionably yes.
Taking all the relevant evidence together, a reasonableobserver would conclude that the Proclamation was driven primarily by anti-Muslim animus, rather than by the
—————— 2The content of these videos is highly inflammatory, and their titlesare arguably misleading. For instance, the person depicted in the video
entitled “Muslim migrant beats up Dutch boy on crutches!” was reportedly not a “migrant,” and his religion is not publicly known. See Brief for Plaintiffs in International Refugee Assistance Project v. Trump as Amici Curiae 12, n. 4; P. Baker & E. Sullivan, Trump Shares Inflam
matory
Anti-Muslim Videos, and Britain’s Leader Condemns Them,N. Y. Times, Nov. 29, 2017 (“[A]ccording to local officials, both boys areDutch”), https://www.nytimes.com/2017/11/29/us/politics/trump
anti-
muslim-videos-jayda-fransen.html (all Internet materials as lastvisited June 25, 2018).
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Government’s asserted national-security justifications.Even before being sworn into office, then-candidate Trumpstated that “Islam hates us,” App. 399, warned that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” id., at 121, promised to enact a “total and complete shutdown of Muslims entering the United States,” id., at 119, and instructed one of his advisers to find a “lega[l]” way toenact a Muslim ban, id., at 125.3 The President continued to make similar statements well after his inauguration, asdetailed above, see supra, at 6–10.
Moreover, despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam.4 Instead, he has continued to make
—————— 3The Government urges us to disregard the President’s campaign statements. Brief for Petitioners 66–67. But nothing in our precedent supports that blinkered approach. To the contrary, courts must consider “the historical background of the decision under challenge, thespecific series of events leading to the enactment or official policy inquestion, and the legislative or administrative history.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540 (1993) (opinion of KENNEDY, J.). Moreover, President Trump and his advisers have repeatedly acknowledged that the Proclamation and its predecessors are an outgrowth of the President’s campaign statements. For example, just last November, the Deputy White House Press Secretaryreminded the media that the Proclamation addresses “issues” the President has been talking about “for years,” including on “the campaign trail.” IRAP II, 883 F. 3d 233, 267 (CA4 2018). In any case, asthe Fourth Circuit correctly recognized, even without relying on any ofthe President’s campaign statements, a reasonable observer would conclude that the Proclamation was enacted for the impermissible purpose of disfavoring Muslims. Id., at 266, 268. 4At oral argument, the Solicitor General asserted that President Trump “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban” and “has praised Islam as one of the great countries [sic] of the world.” Tr. of Oral Arg. 81. Because the record contained no evidence of any such statement made on September 25th, however, the Solicitor General clarified after oral argument that heactually intended to refer to President Trump’s statement during a
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remarks that a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers. Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in theirattempts to launder the Proclamation of its discriminatory taint. See United States v. Fordice, 505 U. S. 717, 746– 747 (1992) (“[G]iven an initially tainted policy, it is eminently reasonable to make the [Government] bear the riskof nonpersuasion with respect to intent at some futuretime, both because the [Government] has created the dispute through its own prior unlawful conduct, and because discriminatory intent does tend to persist through time” (citation omitted)). Notably, the Court recentlyfound less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18) (“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to the affirmance of the order—
—————— television interview on January 25, 2017. Letter from N. Francisco, Solicitor General, to S. Harris, Clerk of Court (May 1, 2018); ReplyBrief 28, n. 8. During that interview, the President was asked whether EO–1 was “the Muslim ban,” and answered, “no it’s not the Muslim ban.” See Transcript: ABC News anchor David Muir interviews President Trump, ABC News, Jan. 25, 2017, http://abcnews.go.com/Politics/transcript-abc-news-anchor-david-muir-interviews-president/story?id= 45047602. But that lone assertion hardly qualifies as a disavowal ofthe President’s comments about Islam—some of which were spoken after January 25, 2017. Moreover, it strains credulity to say thatPresident Trump’s January 25th statement makes “crystal-clear” thathe never intended to impose a Muslim ban given that, until May 2017, the President’s website displayed the statement regarding his campaign promise to ban Muslims from entering the country.
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were inconsistent with what the Free Exercise Clause requires”). It should find the same here.
Ultimately, what began as a policy explicitly “calling for a total and complete shutdown of Muslims entering theUnited States” has since morphed into a “Proclamation” putatively based on national-security concerns. But this new window dressing cannot conceal an unassailable fact:the words of the President and his advisers create the strong perception that the Proclamation is contaminated by impermissible discriminatory animus against Islamand its followers.
II Rather than defend the President’s problematic statements, the Government urges this Court to set them asideand defer to the President on issues related to immigration and national security. The majority accepts thatinvitation and incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establishment Clause claim. The majority begins its constitutional analysis by noting that this Court, at times, “has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen.” Ante, at 30 (citing Kleindienst v. Mandel, 408 U. S. 753 (1972)). As the majority notes, Mandel held that when the Executive Branch provides “a facially legitimate and bona fide reason” for denying a visa, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification.” Id., at 770. In his controlling concurrence in Kerry v. Din, 576 U. S. ___ (2015), JUSTICE KENNEDY applied Mandel’s holding and elaborated that courts can“‘look behind’ the Government’s exclusion of ” a foreignnational if there is “an affirmative showing of bad faith onthe part of the consular officer who denied [the] visa.” Din, 576 U. S., at ___ (opinion concurring in judgment)
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(slip op., at 5). The extent to which Mandel and Din apply at all to this case is unsettled, and there is good reason tothink they do not.5 Indeed, even the Government agreedat oral argument that where the Court confronts a situation involving “all kinds of denigrating comments about” aparticular religion and a subsequent policy that is designed with the purpose of disfavoring that religion but that “dot[s] all the i’s and . . . cross[es] all the t’s,” Mandel would not “pu[t] an end to judicial review of that set offacts.” Tr. of Oral Arg. 16.
In light of the Government’s suggestion “that it may beappropriate here for the inquiry to extend beyond thefacial neutrality of the order,” the majority rightly declines ——————
5 Mandel and Din are readily distinguishable from this case for a number of reasons. First, Mandel and Din each involved a constitutional challenge to an Executive Branch decision to exclude a singleforeign national under a specific statutory ground of inadmissibility. Mandel, 408 U. S., at 767; Din, 576 U. S., at ___ (slip op., at 1). Here, by contrast, President Trump is not exercising his discretionary authority to determine the admission or exclusion of a particular foreign national. He promulgated an executive order affecting millions ofindividuals on a categorical basis. Second, Mandel and Din did not purport to establish the framework for adjudicating cases (like this one)involving claims that the Executive Branch violated the Establishment Clause by acting pursuant to an unconstitutional purpose. Applying Mandel’s narrow standard of review to such a claim would run contraryto this Court’s repeated admonition that “[f]acial neutrality is not determinative” in the Establishment Clause context. Lukumi, 508
U. S., at 534. Likewise, the majority’s passing invocation of Fiallo v. Bell, 430 U. S. 787 (1977), is misplaced. Fiallo, unlike this case, addressed a constitutional challenge to a statute enacted by Congress, not an order of the President. Id., at 791. Fiallo’s application of Mandel says little about whether Mandel’s narrow standard of review applies tothe unilateral executive proclamation promulgated under the circumstances of this case. Finally, even assuming that Mandel and Din apply here, they would not preclude us from looking behind the face ofthe Proclamation because plaintiffs have made “an affirmative showingof bad faith,” Din, 576 U. S., at ___ (slip op., at 5), by the President who,among other things, instructed his subordinates to find a “lega[l]” wayto enact a Muslim ban, App. 125; see supra, at 4–10.
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to apply Mandel’s “narrow standard of review” and “assume[s] that we may look behind the face of the Proclamation.” Ante, at 31–32. In doing so, however, the Court,without explanation or precedential support, limits itsreview of the Proclamation to rational-basis scrutiny. Ibid. That approach is perplexing, given that in other Establishment Clause cases, including those involving claims of religious animus or discrimination, this Courthas applied a more stringent standard of review. See, e.g., McCreary, 545 U. S., at 860–863; Larson, 456 U. S., at 246; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 449– 452 (1969); see also Colorado Christian Univ. v. Weaver, 534 F. 3d 1245, 1266 (CA10 2008) (McConnell, J.) (noting that, under Supreme Court precedent, laws “involving discrimination on the basis of religion, including interdenominational discrimination, are subject to heightened scrutiny whether they arise under the Free ExerciseClause, the Establishment Clause, or the Equal ProtectionClause” (citations omitted)).6 As explained above, the
—————— 6The majority chides as “problematic” the importation of Establishment Clause jurisprudence “in the national security and foreign affairs context.” Ante, at 32–33, n. 5. As the majority sees it, this Court’sEstablishment Clause precedents do not apply to cases involving“immigration policies, diplomatic sanctions, and military actions.” Ante, at 32, n. 5. But just because the Court has not confronted the precise situation at hand does not render these cases (or the principles they announced) inapplicable. Moreover, the majority’s complaintregarding the lack of direct authority is a puzzling charge, given thatthe majority itself fails to cite any “authority for its proposition” that amore probing review is inappropriate in a case like this one, where United States citizens allege that the Executive has violated theEstablishment Clause by issuing a sweeping executive order motivatedby animus. Ante, at 33 n. 5; see supra, at 14, and n. 5. In any event, even if there is no prior case directly on point, it is clear from our precedent that “[w]hatever power the United States Constitution envisions for the Executive” in the context of national security and foreign affairs, “it most assuredly envisions a role for all three branches
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Proclamation is plainly unconstitutional under that heightened standard. See supra, at 10–13.
But even under rational-basis review, the Proclamation must fall. That is so because the Proclamation is “‘divorced from any factual context from which we coulddiscern a relationship to legitimate state interests,’ and‘its sheer breadth [is] so discontinuous with the reasonsoffered for it’” that the policy is “‘inexplicable by anything but animus.’” Ante, at 33 (quoting Romer v. Evans, 517
U. S. 620, 632, 635 (1996)); see also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448 (1985) (recognizingthat 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). The President’s statements, which the majority utterly fails to address inits legal analysis, strongly support the conclusion that theProclamation was issued to express hostility toward Muslims and exclude them from the country. Given the overwhelming record evidence of anti-Muslim animus, it simply cannot be said that the Proclamation has a legitimatebasis. IRAP II, 883 F. 3d, at 352 (Harris, J., concurring) (explaining that the Proclamation contravenes the bedrock principle “that the government may not act on the basis of
—————— when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). This Court’s Establishment Clause precedents require that, if a reasonable observer would understand an executive action to be driven by discriminatory animus, the action beinvalidated. See McCreary, 545 U. S., at 860. That reasonable-observer inquiry includes consideration of the Government’s assertedjustifications for its actions. The Government’s invocation of a national-security justification, however, does not mean that the Court should close its eyes to other relevant information. Deference is different from unquestioning acceptance. Thus, what is “far more problematic” in this case is the majority’s apparent willingness to throw the EstablishmentClause out the window and forgo any meaningful constitutional review at the mere mention of a national-security concern. Ante, at 32, n. 5.
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animus toward a disfavored religious minority” (emphasisin original)).
The majority insists that the Proclamation furthers twointerrelated national-security interests: “preventing entryof nationals who cannot be adequately vetted and inducingother nations to improve their practices.” Ante, at 34. But the Court offers insufficient support for its view “that theentry suspension has a legitimate grounding in [those] national security concerns, quite apart from any religioushostility.” Ibid.; see also ante, at 33–38, and n. 7. Indeed, even a cursory review of the Government’s assertednational-security rationale reveals that the Proclamation isnothing more than a “‘religious gerrymander.’” Lukumi, 508 U. S., at 535.
The majority first emphasizes that the Proclamation “says nothing about religion.” Ante, at 34. Even so, the Proclamation, just like its predecessors, overwhelmingly targets Muslim-majority nations. Given the record here, including all the President’s statements linking the Proclamation to his apparent hostility toward Muslims, it is of no moment that the Proclamation also includes minor restrictions on two non-Muslim majority countries, NorthKorea and Venezuela, or that the Government has removed a few Muslim-majority countries from the list of covered countries since EO–1 was issued. Consideration of the entire record supports the conclusion that the inclusion of North Korea and Venezuela, and the removal of other countries, simply reflect subtle efforts to start “talking territory instead of Muslim,” App. 123, precisely so theExecutive Branch could evade criticism or legal consequences for the Proclamation’s otherwise clear targeting of Muslims. The Proclamation’s effect on North Korea and Venezuela, for example, is insubstantial, if not entirely symbolic. A prior sanctions order already restricts entryof North Korean nationals, see Exec. Order No. 13810, 82 Fed. Reg. 44705 (2017), and the Proclamation targets only
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a handful of Venezuelan government officials and their immediate family members, 82 Fed. Reg. 45166. As such, the President’s inclusion of North Korea and Venezuela does little to mitigate the anti-Muslim animus that permeates the Proclamation.
The majority next contends that the Proclamation “reflects the results of a worldwide review process under- taken by multiple Cabinet officials.” Ante, at 34. At the outset, there is some evidence that at least one of the individuals involved in that process may have exhibitedbias against Muslims. As noted by one group of amici, the Trump administration appointed Frank Wuco to help enforce the President’s travel bans and lead the multi-agency review process. See Brief for Plaintiffs in International Refugee Assistance Project v. Trump as Amici Curiae 13–14, and n. 10. According to amici, Wuco has purportedly made several suspect public statements aboutIslam: He has “publicly declared that it was a ‘great idea’ to ‘stop the visa application process into this country fromMuslim nations in a blanket type of policy,’” “that Muslim populations ‘living under other-than-Muslim rule’ will‘necessarily’ turn to violence, that Islam prescribes ‘violence and warfare against unbelievers,’ and that Muslims‘by-and-large . . . resist assimilation.’” Id., at 14.
But, even setting aside those comments, the worldwidereview does little to break the clear connection between the Proclamation and the President’s anti-Muslim statements. For “[n]o matter how many officials affix their names to it, the Proclamation rests on a rotten foundation.” Brief for Constitutional Law Scholars as Amici Curiae 7 (filed Apr. 2, 2018); see supra, at 4–10. The President campaigned on a promise to implement a “totaland complete shutdown of Muslims” entering the country,translated that campaign promise into a concrete policy, and made several statements linking that policy (in itsvarious forms) to anti-Muslim animus.
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Ignoring all this, the majority empowers the Presidentto hide behind an administrative review process that the Government refuses to disclose to the public. See IRAP II, 883 F. 3d, at 268 (“[T]he Government chose not to make the review publicly available” even in redacted form); IRAP v. Trump, No. 17–2231 (CA4), Doc. 126 (Letter from
S. Swingle, Counsel for Defendants-Appellants, to P.Connor, Clerk of the United States Court of Appeals for the Fourth Circuit (Nov. 24, 2017)) (resisting Fourth Circuit’s request that the Government supplement the record with the reports referenced in the Proclamation).Furthermore, evidence of which we can take judicial notice indicates that the multiagency review process could not have been very thorough. Ongoing litigation under the Freedom of Information Act shows that the September 2017 report the Government produced after its reviewprocess was a mere 17 pages. See Brennan Center for Justice v. United States Dept. of State, No. 17–cv–7520 (SDNY), Doc. No. 31–1, pp. 2–3. That the Government’s analysis of the vetting practices of hundreds of countriesboiled down to such a short document raises serious questions about the legitimacy of the President’s proclaimed national-security rationale.
Beyond that, Congress has already addressed the national-security concerns supposedly undergirding the Proclamation through an “extensive and complex” framework governing “immigration and alien status.” Arizona
v. United States, 567 U. S. 387, 395 (2012).7 The Immigra——————
7It is important to note, particularly given the nature of this case, that many consider “using the term ‘alien’ to refer to other humanbeings” to be “offensive and demeaning.” Flores v. United States Citizenship & Immigration Servs., 718 F. 3d 548, 551–552, n. 1 (CA6 2013). I use the term here only where necessary “to be consistent with the statutory language” that Congress has chosen and “to avoid anyconfusion in replacing a legal term of art with a more appropriateterm.” Ibid.
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tion and Nationality Act sets forth, in painstaking detail, areticulated scheme regulating the admission of individualsto the United States. Generally, admission to the UnitedStates requires a valid visa or other travel document. 8
U. S. C. §§1181, 1182(a)(7)(A)(i)(I), 1182(a)(7)(B)(i)(II). To obtain a visa, an applicant must produce “certifiedcop[ies]” of documents proving her identity, background,and criminal history. §§1202(b), 1202(d). An applicant also must undergo an in-person interview with a State Department consular officer. §§1201(a)(1), 1202(h)(1), 22 CFR §§42.62(a)–(b) (2017); see also 8 U. S. C. §§1202(h)(2)(D), 1202(h)(2)(F) (requiring in-person interview if the individual “is a national of a country officiallydesignated by the Secretary of State as a state sponsor of terrorism” or is “a member of a group or section that . . . poses a security threat to the United States”). “Any alien who . . . has engaged in a terrorist activity,” “incited terrorist activity,” or been a representative, member, orendorser of a terrorist organization, or who “is likely to engage after entry in any terrorist activity,”§1182(a)(3)(B), or who has committed one or more of the many crimes enumerated in the statute is inadmissibleand therefore ineligible to receive a visa. See §1182(a)(2)(A) (crime of moral turpitude or drug offense);§1182(a)(2)(C) (drug trafficking or benefiting from a relative who recently trafficked drugs); §1182(a)(2)(D) (prostitution or “unlawful commercialized vice”); §1182(a)(2)(H)(human trafficking); §1182(a)(3) (“Security and related grounds”).
In addition to vetting rigorously any individuals seeking admission to the United States, the Government also rigorously vets the information-sharing and identity-management systems of other countries, as evidenced by the Visa Waiver Program, which permits certain nationals from a select group of countries to skip the ordinary visa-application process. See §1187. To determine which
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countries are eligible for the Visa Waiver Program, the Government considers whether they can satisfy numerous criteria—e.g., using electronic, fraud-resistant passports, §1187(a)(3)(B), 24-hour reporting of lost or stolen passports, §1187(c)(2)(D), and not providing a safe haven for terrorists, §1187(a)(12)(D)(iii). The Secretary of Homeland Security, in consultation with the Secretary of State, alsomust determine that a country’s inclusion in the program will not compromise “the law enforcement and securityinterests of the United States.” §1187(c)(2)(C). Eligibilityfor the program is reassessed on an annual basis. See §1187(a)(12)(D)(iii), 1187(c)(12)(A). As a result of a recent review, for example, the Executive decided in 2016 toremove from the program dual nationals of Iraq, Syria,Iran, and Sudan. See Brief for Former National Security Officials as Amici Curiae 27.
Put simply, Congress has already erected a statutory scheme that fulfills the putative national-security interests the Government now puts forth to justify the Proclamation. Tellingly, the Government remains wholly unableto articulate any credible national-security interest thatwould go unaddressed by the current statutory schemeabsent the Proclamation. The Government also offers no evidence that this current vetting scheme, which involves a highly searching consideration of individuals required to obtain visas for entry into the United States and a highlysearching consideration of which countries are eligible for inclusion in the Visa Waiver Program, is inadequate to achieve the Proclamation’s proclaimed objectives of “preventing entry of nationals who cannot be adequatelyvetted and inducing other nations to improve their [vetting and information-sharing] practices.” Ante, at 34.
For many of these reasons, several former national-security officials from both political parties—includingformer Secretary of State Madeleine Albright, former State Department Legal Adviser John Bellinger III, for22
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mer Central Intelligence Agency Director John Brennan,and former Director of National Intelligence James Clap-per—have advised that the Proclamation and its predecessor orders “do not advance the national-security or foreignpolicy interests of the United States, and in fact do seriousharm to those interests.” Brief for Former National Security Officials as Amici Curiae 15 (boldface deleted).
Moreover, the Proclamation purports to mitigatenational-security risks by excluding nationals of countries that provide insufficient information to vet their nationals. 82 Fed. Reg. 45164. Yet, as plaintiffs explain, the Proclamation broadly denies immigrant visas to all nationals ofthose countries, including those whose admission would likely not implicate these information deficiencies (e.g.,infants, or nationals of countries included in the Proclamation who are long-term residents of and traveling froma country not covered by the Proclamation). See Brief for Respondents 72. In addition, the Proclamation permits certain nationals from the countries named in the Proclamation to obtain nonimmigrant visas, which undermines the Government’s assertion that it does not already have the capacity and sufficient information to vet these individuals adequately. See 82 Fed. Reg. 45165–45169.
Equally unavailing is the majority’s reliance on theProclamation’s waiver program. Ante, at 37, and n. 7. As several amici thoroughly explain, there is reason to suspect that the Proclamation’s waiver program is nothingmore than a sham. See Brief for Pars Equality Center et al. as Amici Curiae 11, 13–28 (explaining that “waiversunder the Proclamation are vanishingly rare” and reporting numerous stories of deserving applicants denied waivers). The remote possibility of obtaining a waiver pursuant to an ad hoc, discretionary, and seemingly arbitrary process scarcely demonstrates that the Proclamation is rooted in a genuine concern for national security. See ante, at 3–8 (BREYER, J., dissenting) (outlining evidence
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suggesting “that the Government is not applying the Proclamation as written,” that “waivers are not being processed in an ordinary way,” and that consular and other officials “do not, in fact, have discretion to grantwaivers”).
In sum, none of the features of the Proclamation highlighted by the majority supports the Government’s claimthat the Proclamation is genuinely and primarily rooted in a legitimate national-security interest. What the unrebutted evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the Proclamation is to disfavor Islam by banning Muslims from entering our country.
III As the foregoing analysis makes clear, plaintiffs arelikely to succeed on the merits of their EstablishmentClause claim. To obtain a preliminary injunction, how- ever, plaintiffs must also show that they are “likely to sufferirreparable harm in the absence of preliminary relief,” that “the balance of equities tips in [their] favor,” and that“an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008).Plaintiffs readily clear those remaining hurdles.First, plaintiffs have shown a likelihood of irreparableharm in the absence of an injunction. As the District Court found, plaintiffs have adduced substantial evidenceshowing that the Proclamation will result in “a multitude of harms that are not compensable with monetary damages and that are irreparable—among them, prolongedseparation from family members, constraints to recruitingand retaining students and faculty members to fosterdiversity and quality within the University community, and the diminished membership of the [Muslim] Association.” 265 F. Supp. 3d 1140, 1159 (Haw. 2017). Second, plaintiffs have demonstrated that the balance of
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the equities tips in their favor. Against plaintiffs’ concreteallegations of serious harm, the Government advancesonly nebulous national-security concerns. Although national security is unquestionably an issue of paramount public importance, it is not “a talisman” that the Government can use “to ward off inconvenient claims—a ‘label’ used to ‘cover a multitude of sins.’” Ziglar v. Abbasi, 582
U. S. ___, ___ (2017) (slip op., at 20). That is especially true here, because, as noted, the Government’s other statutory tools, including the existing rigorous individualized vetting process, already address the Proclamation’spurported national-security concerns. See supra, at 19–
22.
Finally, plaintiffs and their amici have convincinglyestablished that “an injunction is in the public interest.” Winter, 555 U. S., at 20. As explained by the scores of amici who have filed briefs in support of plaintiffs, the Proclamation has deleterious effects on our higher education system;8 national security;9 healthcare;10 artistic culture;11 and the Nation’s technology industry and overall economy.12 Accordingly, the Court of Appeals correctly affirmed, in part, the District Court’s preliminaryinjunction.13
—————— 8See Brief for American Council on Education et al. as Amici Curiae; Brief for Colleges and Universities as Amici Curiae; Brief for New York University as Amicus Curiae. 9See Brief for Retired Generals and Admirals of the U. S. Armed Forces as Amici Curiae; Brief for Former National Security Officials as Amici Curiae. 10See Brief for Association of American Medical Colleges as Amicus Curiae. 11See Brief for Association of Art Museum Directors et al. as Amici Curiae. 12See Brief for U. S. Companies as Amici Curiae; Brief for Massachusetts Technology Leadership Council, Inc., as Amicus Curiae. 13Because the majority concludes that plaintiffs have failed to show alikelihood of success on the merits, it takes no position on “the propriety
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IV The First Amendment stands as a bulwark against official religious prejudice and embodies our Nation’s deepcommitment to religious plurality and tolerance. That constitutional promise is why, “[f]or centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom.” Town of Greece v. Galloway, 572 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 1). Instead of vindicating those principles, today’s decision tosses them aside. In holding that the First Amendment gives way to an executive policy that areasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and deniescountless individuals the fundamental right of religiousliberty.Just weeks ago, the Court rendered its decision in Masterpiece Cakeshop, 584 U. S. ___, which applied the bedrock principles of religious neutrality and tolerance inconsidering a First Amendment challenge to governmentaction. See id., at ___ (slip op., at 17) (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their ownhigh duty to the Constitution and to the rights it secures’” (quoting Lukumi, 508 U. S., at 547)); Masterpiece, 584
—————— of the nationwide scope of the injunction issued by the District Court.” Ante, at 39. The District Court did not abuse its discretion by grantingnationwide relief. Given the nature of the Establishment Clause violation and the unique circumstances of this case, the imposition of a nationwide injunction was “ ‘necessary to provide complete relief to the plaintiffs.’ ” Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 765 (1994); see Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class”).
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U. S., at ___ (KAGAN, J., concurring) (slip op., at 1)(“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectfulconsideration’”). Those principles should apply equally here. In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without“the neutrality that the Free Exercise Clause requires,” id., at ___ (slip op., at 17), the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance. Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, id., at ___–___ (slip op., at 12–14), the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tellsmembers of minority religions in our country “‘that theyare outsiders, not full members of the political community.’” Santa Fe, 530 U. S., at 309.
Today’s holding is all the more troubling given the stark parallels between the reasoning of this case and that of Korematsu v. United States, 323 U. S. 214 (1944). See Brief for Japanese American Citizens League as Amicus Curiae. In Korematsu, the Court gave “a pass [to] anodious, gravely injurious racial classification” authorizedby an executive order. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 275 (1995) (GINSBURG, J., dissenting).As here, the Government invoked an ill-defined national-security threat to justify an exclusionary policy of sweeping proportion. See Brief for Japanese American Citizens League as Amicus Curiae 12–14. As here, the exclusion
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order was rooted in dangerous stereotypes about, inter alia, a particular group’s supposed inability to assimilateand desire to harm the United States. See Korematsu, 323
U. S., at 236–240 (Murphy, J., dissenting). As here, the Government was unwilling to reveal its own intelligenceagencies’ views of the alleged security concerns to the verycitizens it purported to protect. Compare Korematsu v. United States, 584 F. Supp. 1406, 1418–1419 (ND Cal.1984) (discussing information the Government knowingly omitted from report presented to the courts justifying the executive order); Brief for Japanese American CitizensLeague as Amicus Curiae 17–19, with IRAP II, 883 F. 3d, at 268; Brief for Karen Korematsu et al. as Amici Curiae 35–36, and n. 5 (noting that the Government “has gone to great lengths to shield [the Secretary of Homeland Security’s] report from view”). And as here, there was strongevidence that impermissible hostility and animus moti- vated the Government’s policy.
Although a majority of the Court in Korematsu was willing to uphold the Government’s actions based on a barren invocation of national security, dissenting Justiceswarned of that decision’s harm to our constitutional fabric. Justice Murphy recognized that there is a need for great deference to the Executive Branch in the context of national security, but cautioned that “it is essential that there be definite limits to [the government’s] discretion,” as “[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” 323 U. S., at 234 (Murphy, J., dissenting). Justice Jackson lamented that the Court’s decision upholding the Government’s policywould prove to be “a far more subtle blow to liberty thanthe promulgation of the order itself,” for although theexecutive order was not likely to be long lasting, the Court’s willingness to tolerate it would endure. Id., at 245–246.
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In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g.,Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq. (setting forth remedies to individuals affected by theexecutive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the importantstep of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)).This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting theGovernment’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavoredgroup, all in the name of a superficial claim of nationalsecurity, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravelywrong” decision with another. Ante, at 38.
Our Constitution demands, and our country deserves, aJudiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in thatrespect, with profound regret, I dissent.

Outcome: Reversed and remanded

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