On Friday, January 19, 2018, the U.S. Supreme Court agreed to hear Trump v. Hawaii (Docket No. 17-965) and directed the parties to prepare briefs and arguments on the issue of whether President Donald Trump’s travel ban, Proclamation No. 9645, also known as Executive Order 3 (EO-3), violates the Establishment Clause.
In addition to several issues involving the scope of Presidential power, the Establishment Clause issue involves allegations that the Trump administration applied the ban against Muslim countries based on religion, and consequently whether the administration showed favoritism to one religion over another. In an earlier executive order (EO-2), the administration had exclusively banned immigration from Muslim countries, but when that ban was overturned, the administration added North Korea and Venezuela to EO-3. The addition of these two countries, critics charge, was symbolic and designed to assist in litigation rather than serving a “legitimate substantive goal.” (See Respondent’s brief at page 33). During the campaign leading to the 2016 election, the Trump campaign had issued a press release which stated, “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 is going on.” (See CNN, December 8, 2015). The Trump campaign quickly removed the statement from its website, but it is being cited as an indication of the administration’s intent to show religious favoritism.
The case against EO-3 was brought by the Muslim Association of Hawaii and the state of Hawaii which argued that the President exceeded his authority by banning individuals from several countries unilaterally without Congressional approval. On October 30, 2017, the Ninth Circuit Court of Appeals placed an injunction stopping the application of EO-3, ruling that only Congress can issue immigration orders.
The state of Hawaii objected to the Trump administration’s appeal of the Ninth Circuit decision, but asked that if the Court were to agree to hear the case over their objection, the Court should also review an Establishment Clause argument in addition to several technical issues involving the division of powers. The Supreme Court decided to hear the case, but also asked the parties to brief the Establishment Clause issue.
The case is not yet set for oral argument. You can follow the progress of the case and read the briefs as they become available at SCOTUSblog and we will continue to track the Establishment Clause issue as it is developed in the next few months.