In a landmark judgment USA Supreme Court in
the matter of TRUMP, PRESIDENT OF THE UNITED STATES, ETAL V. HAWAII, has upheld
the validity of the Proclamation no. 9645, seeking to improve vetting
procedures for foreign nationals travelling to the United Stated. A jury of nine
judges headed by chief justice Roberts pronounced a majority judgement by 5-4 upholding
the validity of the proclamation no. 9645.
In September 2017, President Trump issued proclamation which
placed entry restrictions on the nationals of eight foreign states, popularly
known as travel ban on Muslim countries. Foreign states were selected for inclusion
based on review undertaken pursuant to one of the President’s earlier executive
orders. As a part of review Department of Homeland and intelligence agencies,
developed an information and risk assessment “baseline”. Subsequently, the Acting
Secretary of Homeland security concluded that eight countries –Chad, Iran,
Iraq, Libya, North Korea, Syria, Venezuela and Yemen remained deficient to
improve their practices. President adopted the said recommendations and issued
the Proclamation.
The Proclamation imposes a range of entry restrictions that
vary based on the “ district circumstances” in each of the eight countries. However,
three Muslim- majority counties –Iraq, Sudan and Chad were removed from the
list later on.
The plaintiff –The state of Hawaii, three individuals with
foreign relatives affected by entry suspension, and the Muslim Association of
Hawaii challenged the Proclamation on the ground that Proclamation violates the
Immigration and Nationally Act ( INA) and establishment Clause. The District
Court granted a nationwide preliminary injunction barring enforcement of the
restriction.
Supreme Court held that President has lawfully exercised the
broad discretion granted to him under § 1182(f) to
suspend the entry of alien into the United States. USC §1182(f)
entrusts to the President the decision whether and when to suspend entry, whose
entry to suspend, for how long and on what conditions. It thus vests President
with “ample power” to impose entry restrictions in addition to those elsewhere
enumerated in the INA. The Proclamation falls well within this comprehensive
delegation. The sole prerequisite set forth in §
1182 ( f) is that President find that the entry of the covered aliens would be
detrimental to the interest of the United States.
Court also observed that Plaintiff have not identified any
conflict between the Proclamation and the immigration scheme reflected in the
INA that would implicitly bar the President from addressing deficiencies in the
Nation’s Vetting system. The existing ground of inadmissibility and the narrow
Visa Waiver Program do not address the failure of certain high –risk countries
to provide a minimum baseline of reliable information.
It was also observed that admission and exclusion of the
foreign nationals is fundamental sovereign attribute exercised by the Government’s
political departments largely immune from judicial control. Although foreign
nationals seeking admission have no constitutional right to entry, this Court
has engaged in a circumscribed judicial inquiry when the denial of visa
allegedly burdens the constitutional right of a U.S Citizen. The Court assumes
that it may look behind the face of the Proclamation to the extent of apply
rational basis review, i.e., whether the entry policy is plausibly related to
the Government’s stated objective to protect the country and improve vetting
process. The policy will be upheld so long as it can reasonably be understood
to result from a justification independent of unconstitutional grounds.
Court took note of the fact that the entry restrictions in Muslim-
majority nations are limited to countries that were previously designated by
congress or prior administrations as posing national security risks. Plaintiffs challenged the entry suspension
based on their perception of its effectiveness and wisdom, but the Court cannot
substitute its own assessment for the Executive’s predictive judgements on such
matters. Court cited Holder V. Humanitarian Law Project, 561 U.S.1, 33-34 in this
regard.
Court further taken in consideration that since the President
introduced entry restrictions in January 2017 three Muslim-majority states
Iraq, Sudan and Chad have been removed from the list and those countries still
subject to entry restrictions, the Proclamation includes numerous exceptions
for various categories of foreign nationals and Proclamation creates a waiver
program open to all covered foreign nationals seeking entry as immigrants or
non-immigrants. Considering the same Court concluded that the Government has set
forth a sufficient national security justification to survive rational basis
review and upheld the validity of the Proclamation no. 9645.
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