Anurag Deep*
I. Introduction
II. Judicial intervention
District courts
Circuit courts
Executive Order-2
EO-2 in the courts
US Supreme Court
Developments after temporary permission by the Supreme Court
III. Proclamation 9645 and the issues
Issue
IV. Majority judgment
Statutory structure
Whether an Emergency measure?
Admissibility determinations and visa issuance: difference
V. Constitutional issue
Judicial review in visa denial to foreigners: circumscribed or comprehensive
Whether Mandel applicable?
Deferential standard of review: other precedents
VI. Dissenting opinion
VII. Schenck to Trump : Hundred years of national security jurisprudence
VIII. Lessons for India
IX. Concluding Remarks
Abstract
[The US Supreme Court has upheld the constitutional validity of the controversial Proclamation of the President, in the case of Trump v. Hawaii. The Proclamation imposed travel restrictions and was condemned by many for the anti-Muslim stand and anti-liberal approach of the President Donald Trump. The conservative judgment of the liberal Supreme Court, therefore, surprised many because the US Supreme Court is famous for the protection of extreme forms of liberty in the USA and is regarded as a champion for pluralism. The majority opinion of the Supreme Court relied more on the law “as it is” in the text rather than the law “as it is applied” in the society. It was expected that the Supreme Court would interpret the Constitution and the law equally in war and peace. However, the trends strongly suggest that the US Supreme Court has never played the same tune in difficult situations. Whenever they found the country is facing a troubled phase (war, cold war or terror war), they have always accorded “security” a priority, over “liberty.” This competing claim of security vis a vis liberty is the subject matter of this paper, which is divided into nine parts.
This competing claim of national security vis a vis personal liberty is the subject matter of this paper, which is divided into nine parts. Part I introduces the three travel ban orders by the US President. Part II examines the judicial intervention of Executive Orders (EO-1 and 2) at various district courts, circuit courts and the initial intervention of the US Supreme Court on the ground of a pluralist democracy. Part III presents the brief content of the Proclamation and issues before the Supreme Court. Parts IV, V and VI are devoted to the US Supreme Court judgment which examines the majority, concurring and minority opinions. It deals with the scope of judicial review in cases involving national security, foreign affairs and role of deferential standard of review vis a vis reasonable observer review. Can human rights of religious freedom be compromised for nationalist cause? The questions analysed include; should judicial review of a law be limited to constitutionality and not desirability or effectiveness of the law especially when it goes against the values of pluralism ? Should the judiciary enquire whether the action of the government was animated by animus against certain believers? Part VII scans hundred years of the debate on nationalism vis a vis pluralism from Schenck to Trump where it has been inquired if the judiciary has behaved equally in difficult times and peace time. Part VIII scrutinises the lessons for India. How should the Indian react to executive decisions on issues of Pakistani migrants, Rohingya refugees etc? Should nationalism and national interest be harmonised with human rights of persons from other nationality? Should there be some limit of judicial review in the matter of citizenship of non-Muslims as proposed in the Citizenship Bill, 2019, or National Register of Citizens (NRC) in Assam, 2018? Should the Supreme Court of India resort to a “rights” based interpretation in foreign affairs and national security cases as done by minority judges in Trump? Or should it use “deferential standard” of judicial review in these narrow cases? This work also refers to two recent decisions of the Delhi high court , i.e Kasha Elizabeth Vande and Mohammad Abdul Moyeed, where the court dealt with the entry or stay restriction to two foreign citizens and decided differently. Part IX proposes concluding remarks on whether it is high time for the Indian Supreme Court to establish national security jurisprudence like the US judiciary.]
I. Introduction
Electoral promises with religious overtones sometimes lead to victory in elections even in those countries, which have strong traditions of liberal democracy. Such promises create disputes during elections. Sometimes they culminate in controversial policies and conservative laws. These conservative approaches finally travel to the courts on constitutional and legal issues of competing claims of conservatism and liberalism. The electoral campaign of the presidential elections in America was very controversial for the anti-Muslim stand taken by Donald Trump. He has aggressively campaigned the presidential elections on the issue of national security threat without concealing his Islamophobia. He convinced the voters that liberal laws and policies of the USA (like the US refugee resettlement program) facilitate an easy entry into the country for foreign terrorists and provide a breeding ground for real threats to American life, liberty and property. He promised to stop entries of alien nationals who pose and support a real threat to the sovereignty and security of the USA. In pursuance of his promise, he issued three presidential instruments, viz. EO (Executive Order)-1, EO-2 and a Presidential Proclamation to enforce travel ban. EO-1 was stayed by subordinate courts. EO-2 replaced EO-1. EO-2 was also stayed by the subordinate courts but the stay was lifted by the Supreme Court of the USA. A more detailed Presidential Proclamation was further issued subsequently, and was upheld by the majority in the Supreme Court of the USA.
The Immigration and Nationality Act, 1952 (INA-amended in 1965) prescribes a vetting process, containing numerous requirements for foreign nationals, who are seeking entry into the United States. The Act also vests in the President the power to restrict such entry if it “would be detrimental to the interests of the United States.” During the election campaign, Donal J Trump declared that a law should be made to completely “shut down Muslims” and he promised to exercise his statutory authority under the INA to restrict their entry onto American soil. Seven days after becoming the President, Donald J Trump signed an Executive Order 13769 (EO-1), titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” because “terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” This EO-1 led to three consequences. (i) It prohibited the entry of all citizens of seven countries for 90 days regardless of their visa status. These countries were Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The reasons given were as follows: ISIS has a heavy presence in Syria; Iran, Sudan, and Syria are state sponsors of terrorism; and Libya, Somalia, and Yemen are safe havens for terrorists (ii) The United States Refugee Admissions Program (USRAP) was also suspended for 120 days. On resumption of the USRAP, the officials were required to “prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality” and (iii) It suspended indefinitely the entry of all Syrian refugees. The officials were also required to allow case-by-case exceptions to these provisions only “in the national interest.” The common feature between these countries is their Muslim dominant population. Therefore, the EO-1 was also avowed to be a "Muslim ban." The travel ban led to the immediate cancellation of thousands of visas. Hundreds of travellers with visas were not allowed to board airplanes bound for the United States or denied entry on arrival and some of them were detained. Individual States, the civil society and the aggrieved individuals challenged the EO-1 in various judicial forums.
II. Judicial intervention
The executive orders and the Proclamation were challenged in the federal district courts. The decisions thereof were challenged in the circuit courts and then finally in the Federal Supreme Court of the USA. A brief discussion of the case history is desirable to appreciate the arguments and responses forwarded by both sides.
District courts
Unlike in India, the validity of a federal law in the USA can be challenged in federal district courts. The State of Washington filed a suit in the United States District Court for the Western District of Washington. The petition challenged sections 3(c), 5(a)-(c), and 5(e) of the Executive Order-1. It was argued that the EO-1 “stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities and that it was in violation of the First Amendment [establishment of religion] and Fifth Amendment [due process clause], the Immigration and Nationality Act (INA), the Foreign Affairs Reform and Restructuring Act, 1998, the Religious Freedom Restoration Act, 1993, and the Administrative Procedure Act, 1946. The State of Washington also alleged that the Executive Order-1 was not truly meant to protect against terror attacks by foreign nationals. Rather, it was intended to enact a “Muslim ban” as the President had promised during his presidential campaign. In other words, the EO-1 was issued with religious animus to “minister the wounded vanity.” The State of Minnesota was also added as a plaintiff, and claimed protection under the Tenth Amendment. A federal district court issued a temporary restraining order (TRO) which enjoined enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Executive Order.
Circuit courts
The Government appealed in the United States Court of Appeals for the Ninth Circuit for an urgent stay of the federal court order. The government was primarily required to answer three things-(i) What is the likelihood to succeed on the merits of the case, (ii) What is the degree of hardship caused by a stay on the EO-1, and (iii) How does the public interest suffer from granting a stay on the EO-1?
The appellate jurisdiction was also questioned because, ordinarily, a TRO could not be appealed. However, the appeal court held that this case is not an ordinary litigation and therefore, it has jurisdiction to decide the case. On the issue of lifting the district court stay injunction, the appellate court did not favour the Trump administration and sustained the stay on the travel ban order. Indeed, Trump admitted that the “Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion.” Consequently, the enforcement of the EO-1 was stopped to honour the order of the court and the State Department re-validated visas that had previously been revoked.
Executive Order-2
The Trump administration came up with a new Executive Order 13780 (EO-2). The new order expressly declared that the previous EO-1 “was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities whoever they are and wherever they reside to avail themselves of the USRAP in light of their particular challenges and circumstances.” The new EO i.e EO-2 also excluded “from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.” The EO-2 differed from EO-1. It did not include the indefinite ban on Syrian refugees and also eliminated the provision of preferential treatment of religious minorities seeking refugee status. It excluded Iraq from its list of designated countries. EO-2 also exempted certain categories of nationals from the designated countries and instituted a waiver process for qualifying individuals.
EO-2 in the courts
The State of Hawaii moved its district court to challenge the EO-2 (13780). The District Court of Hawaii ordered a nationwide TRO (Temporary Restraining Order) in the case of State of Hawaii And Ismail Elshikh v. Donald J Trump, on the reasoning that the “Plaintiffs have shown a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution.” The court also found that “the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO.” The court justified a nationwide relief “in light of the likelihood of success on the Establishment Clause claim.” A similar finding was reached by the District Court of Maryland. This was further heard, in the case of International Refugee Assistance Project v. Donald J Trump, by the United States Court of Appeals for the Fourth Circuit, which inquired whether the Constitution of the USA remains the same during war and peace; whether the Executive Order uses vague words of national security; and also “in context drips with religious intolerance, animus, and discrimination.” The government argued that the singling out of countries was based on “risk and not religion”. It isolates only a small proportion of the world’s Muslim-majority nations. Indeed, the EO-2 applies to everyone in those countries. Even non-Muslims from these countries cannot enter the USA. Therefore, the government argued that the ban order is secular and not biased against Muslims. The Court, however, was not convinced because the government itself admitted that the EO-2, though a watered down version, was basically the outcome of the same policy commitments which had intended the EO-1. The EO-2’s practical operation could not be severed from its intention. It was held by the majority in the Fourth Circuit Court that:
EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs.
The EO-2 was blocked even by the higher court for want of religious neutrality of intention of the official Proclamation.
US Supreme Court
The Trump government appealed to the Supreme Court of the USA in Trump v. Intern. Refugee Assistance Project, which stayed the order of the appellate court and allowed the travel restrictions with minor modifications. The Court held as under:
[We] grant the Government's stay applications in part and narrow the scope of the injunctions as to section 2(c). The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that section 2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO-2.
The Supreme Court prima facie found two legal flaws in the injunction (TRO) granted by the subordinate courts. (i) The reach of the injunctions was too broad to convince. The injunctions also barred the “enforcement of section 2(c) against foreign nationals abroad who have no connection to the United States at all” as if the foreigners had a constitutional right to enter the USA, which was a complete misreading of provisions of law. (ii) National security is “an urgent objective of the highest order.” This has to be preserved. Surprisingly, all nine judges agreed that “preliminary injunctions entered in these cases should be stayed.” There was, however, a difference of opinion on whether they should be stayed in full or with some modifications. Majority allowed the travel ban order with modifications on execution of EO-2.
Developments after temporary permission by the Supreme Court
Encouraged by the Supreme Court’s permission, the government continued with the mandate of EO-2. For example, section 2(a) of Executive Order -2 directed as under:
[A] worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.
The above-mentioned review report was submitted. The Secretary of Homeland Security, the Secretary of State and the Director of National Intelligence developed a baseline for the kinds of information required from foreign governments to check the problem of terrorism emanating from foreign soil and to assess whether aliens were a threat to security or public safety or not. That baseline incorporated three categories of criteria under section 1(c), Which were as follows. (i) Identity-management information, which focused on ensuring documents’ integrity at the end of foreign countries, through electronic passports, lost document reports etc. (ii) National security and public-safety information, which would examine the willingness of foreign countries to share information of suspected terrorists and criminals’ history, crew details etc. on request. (iii) National security and public safety risk assessment, which would provide indicators like whether the country in question was a known or potential safe haven for terrorists. The government agencies evaluated around 200 countries and identified 47 countries as deficient on these three criteria. 16 countries were found being “inadequate” while 31 at “risk” of being inadequate. 50 days’ time was provided to encourage these countries to improve their performance. These engagements culminated in fruitful outcomes because 40 countries responded positively. However, eight countries remained in the “inadequate” list. They were Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. Iraq was exempted because of the two countries’ close cooperative relationship, the presence of US army in Iraq etc. Somalia, though qualified under the criteria, had the peculiar situation of “government’s inability to effectively and consistently cooperate.” As per section 2(e) of EO-2, a recommendation report was submitted to restrict entry of nationals of eight countries because they were adamant to remain defiant.
The President reviewed the report with the Secretaries of State, Defense and Homeland Security, and the Attorney General. They considered various factors like the country’s capacity, ability, and willingness to cooperate with the US, significant terrorist presence, foreign policy, national security, and counterterrorism goals, alongside the distinct circumstances of these countries etc. The President concluded that sufficient information about the citizens of these countries was necessary to examine the risk posed to America. Therefore, it was desirable to prevent the entry of those foreign nationals.
III. Proclamation 9645 and the issues
Based on various reports and recommendations of expert bodies, and taking tips from judicial decisions on EOs, the President issued a third entry restriction order. However, unlike the first and second, which were termed Executive Orders (EO), this was called a Proclamation. “The difference between Executive orders and proclamations is more one of form than of substance.” Both are Presidential instruments.
The Proclamation imposed restriction and limitation on the entry of nationals of seven countries based on the baseline discussed above. In this Proclamation, the Trump administration imposed entry restrictions on the nationals of countries on either of two grounds; (i) The countries do not share adequate information for an entry determination, or (ii) The country presents a national security risk for America. These restrictions made distinction between immigrants and non-immigrants because it was “more difficult to remove immigrants than non-immigrants even after national security concerns arise.” Section 2 of the Proclamation provides brief but specific rationale for entry limitations on these eight countries. There was no blanket restriction. The restriction prescribed a type of visa which was completely restricted and one which was not restricted. The Proclamation acknowledged that “Libya is an important and valuable counterterrorism partner of the United States” but restrictions were necessary as per criteria, though it was not on all visas. Section 3 (b) provided six categories of “exceptions” where the Proclamation would not apply. Section 3 (c) (i) talked about case-by-case basis “waivers” by government officials in all entry restrictions, like if the restriction caused great hardship to the aggrieved or posed no threat to national security, or if it was in the national interest etc. Section 3 (c) (ii) dealt with the guidelines of “standards, policies, and procedures” in “waiver” cases so that the discretion provided to officers would remain regulated and not be arbitrary. Section 4 prescribed “Adjustments to and Removal of Suspensions and Limitations” which provided scope for modifications of restrictions based on a continuous monitoring of these countries’ responses. Section 5 dealt with “Reports on Screening and Vetting Procedures,” Section 6 was on “Enforcement” and section 7 provided “Effective Dates.” Section 8 prescribed “Severability” and section 9, “General Provisions.” The Supreme Court focussed on two issues.
Issue
i. Whether the President had authority under the Immigration and Nationality Act, 1952 to issue the Proclamation, and
ii. Whether the entry policy violated the Establishment Clause of the First Amendment?
IV. Majority judgment
The judgment was thinly divided and out of nine, five judges upheld the Proclamation. Robert, CJ. discussed the scope of the statute which was source of the Executive Orders as well as the Proclamation, judicial review of the sufficiency of executive decision especially when it dealt with national security, absence of a sunset clause,a well-defined group, adequacy of the statutory structure, legislative intention, executive history, deferential standard of review, reasonable observer standard of review, applicability of Mandel and overruling of Korematsu.
The statutory scope
The principal source of that authority stems from section 1182(f) of INA, which 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.” The provision grants the President broad discretion. Section 1182(f) entrusts the President with decisions relating to whether entry should be suspended, when it should be suspended, for whom it should be suspended (whether all aliens or any class of aliens), the duration for which it should be suspended, and the conditions for suspension.. The majority held that such a broad discretion through the statute itself leads to the conclusion that section 1182(f) vests the President with “ample power” to impose entry restrictions. This power is not residuary in nature but additional to those enumerated elsewhere in the INA, and therefore, the delegation is comprehensive. Section 1182(f) requires the President to “find” that the entry “would be detrimental to the interests of the United States.” To “find” the same, the President engaged in a review process at multiple levels, already discussed above. The Court was convinced that the Proclamation was issued setting forth extensive findings, identifying countries deficient in the process and then detailing various restrictions.
The second point was whether sufficient information was provided to deny such entry. The plaintiffs argued that the government must provide sufficient details of its findings so that it may enable judicial review. Section 1(j) of the Proclamation stated that the government could not disclose all grounds of denial because of national interest or classified information. The government argued that once the statute required the President to “find” and determine on the basis of “interests of the United States,” it foreclosed “any meaningful judicial standard of review” once such finding was made by the President. Was the finding by the President, as well as its sufficiency, subject to judicial review? The majority held that “assuming that some form of review is appropriate, the plaintiffs’ attacks on the sufficiency of the President’s findings cannot be sustained.” Using the comparative way of analogy, the majority found that Proclamation No. 9645, spanning 12 pages (covering process, agency evaluations, and recommendations), was more detailed than previous Proclamations by other Presidents. The Court found that Trump’s detailed Proclamation reposed greater confidence vis a vis previous executive orders by other presidency on similar matters. Moreover, any “searching inquiry into the persuasiveness of the President’s justifications is inconsistent” in this case because of two reasons. (i) The broad statutory text under the INA and (ii) the deference traditionally accorded to the President in the area of national security. The majority also used judicial precedents like Sale, which held that “[w]hether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [section 1182(f)] authority.” Another judgment was Holder v. Humanitarian Law Project, where it was held that in case of “a preventive measure . . . in the context of international affairs and national security,” the President was “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” Both the authorities were directly related to the dispute, because in Sale, section 1182(f) was referred, while in Humanitarian Law Project, material support to a foreign terrorist organisation was in issue.
Thirdly, the concern of the plaintiffs was that the suspension of entry had no fixed end date and such broad powers were exercised without any sunset clause. The majority also rejected this argument on two grounds. (i) The statutory text does not require such a sunset clause and gives wide discretion. (ii) Besides, the Proclamation does mention that it will remain in force only if necessary. The Proclamation provided for consistent evaluation of the decision to restrict at regular intervals. Indeed, sufficient improvement led to the lifting of restriction from nationals of Chad. The fourth point of concern was whether the “class of aliens” referred to a well-defined group or not and whether the provision under the Proclamation was too broad. The Court refused to honour this “unspoken tailoring requirement” against the desire of the Congress. Under the text of section 1182(f), the Congress granted authority to suspend entry of not only “any class of aliens” but also “all aliens”, which only indicates the width of the discretion provided to the President.
Statutory structure
The next set of arguments of the plaintiffs was based on statutory structure and legislative history. It was argued that the INA already provides a two-fold structure to deal with alien entry issues under section 1361 and section 1187. Any Proclamation can supplement, but not supplant, the provision. The Proclamation was supplanting the provision by providing a fresh structure and countermanding the considered policy judgments of the Congress. In other words, the plaintiffs presented a direct conflict between the primary legislation (INA) and the subordinate legislation (the Proclamation). The Supreme Court analysed this argument and inquired whether the statutory structure under the INA was sufficient in itself or not. The Court found that (i) 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 make that determination.” (ii) Moreover, the current statutory structure of select partnership covers less than 20% of the countries in the world. It does not govern the entry of nationals from the vast majority of countries, particularly those presenting nations’ heightened terrorism concerns. Based on these two rationales, the Court concluded that the Proclamation did not substitute the statutory structure and only facilitated the enforcement of the command of the Congress.
Whether an Emergency measure?
Another question was whether such authority under the statute had to be used only during emergencies. The Court called this argument a “remarkably cramped” understanding of the statutory provision because of three reasons. (i) Granting of broad discretion to the President only signified that the President is empowered to exercise his authority in all situations. (ii) Legislative history also substantiated the opinion of the majority. The Court inquired into the status of pre-existing law to ascertain the intention of the Congress. Prior to the enactment of section 1182(f) in 1952, its predecessor statutes intended to use this power during times of crisis. “Congress made one critical alteration--it removed the national emergency standard.” If the arguments of the plaintiffs were accepted, that would restore the pre-existing position and would unsettle the conscious departure of the Congress. The majority here used the mischief rule of interpretation propounded in Heydon's case. (iii) Moving from legislative history to executive history, the Court found that previous Presidents used their expanded authority not only in cases of “harmful acts but instead to retaliate for conduct by their governments that conflicted with US foreign policy interests.” The Court also referred to examples of restraint orders during previous presidency, which was based merely on nationality. Therefore, the authority could be used during all situations and could not be limited to times of emergency.
Admissibility determinations and visa issuance: difference
It was argued that section 1152(a)(1)(A) of the INA prohibits discrimination based on nationality. Therefore, the Proclamation violates this provision. The majority rejected this argument because it was based on the wrong notion that admissibility determinations and visa issuance is same thing, while both are different and operate in separate fields. Section 1182 prescribes the pool of individuals who may be admissible to the United States. Its restrictions play at two levels, (i) any alien who is inadmissible under section 1182 (based on health risks, criminal history, or foreign policy consequences etc.) is screened out as “ineligible to receive a visa.” (ii) Suppose a consular officer issues a visa. This does not guarantee automatic entry into the United States because on arrival the alien may be denied entry. An immigration officer is empowered to determine whether the applicant is “inadmissible under this chapter or any other provision of law”—including section 1182(f) or section 1201(h). “Section 1182 defines the universe of aliens who are admissible into the United States (and therefore, eligible to receive a visa). Once section 1182 sets the boundaries of admissibility into the United States,” section 1152(a)(1)(A) comes in picture. It prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. Admissibility is not regulated by section 1152(a)(1)(A) but by section 1182. On the other hand, visa issuance is regulated by 1152(a)(1)(A). Section 1152(a)(1)(A) does not constrain the President’s power to determine who may enter the country. Had Congress intended so, it would have chosen a “language directed to that end.” Executive history again favoured Trump because President Reagan suspended the entry of all Cuban nationals as immigrants and President Carter denied and revoked visas to all Iranian nationals. Their power was never constrained by section 1152(a)(1)(A). The Court amplified the repercussions of the plaintiffs’ argument, pointing out that if section 1152(a)(1)(A) acted as a rider on such executive orders, the President would not be able to suspend the entry of nationals in case of an epidemic, or “a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.” Therefore, the Supreme Court decided that the Proclamation was not inconsistent with the statutory regime of the INA. After addressing the statutory challenge, the Court moved on to the constitutional challenge.
V. Constitutional issue
Besides the statutory challenge, the Proclamation was also challenged on constitutional parameters (that it was against the establishment clause of the First Amendment). While deciding the constitutional challenge, the first argument addressed was, the locus of the petitioner on the constitutional matter. Whether the plaintiffs had the standing to sue, because standing requires more than just a “keen interest in the issue.” The precedential authority of School Dist. of Abington Township v. Schempp, held that for an alleged violation of the Establishment Clause, a plaintiff must show, that he is “directly affected by the laws and practices against which [his] complaints are directed.” The entry restrictions through the questionable Proclamation did not affect the right of the plaintiffs though it was applied to those seeking an entry in the United States. Was it sufficient for the locus of the plaintiffs? The Supreme Court was unanimous that “a person’s interest in being united with his relatives is sufficiently concrete and particularized to form the basis of an Article III [Judicial Branch] injury in fact.” Therefore, the Court concluded, “that the individual plaintiffs have Article III standing to challenge the exclusion of their relatives under the Establishment Clause.”
After an undivided opinion of the Court on the locus of the plaintiffs on the constitutional issue, the Court focused on whether the Proclamation was issued in violation of the Establishment clause. The relevant part of the First Amendment provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The central argument of the plaintiffs was that the Proclamation was not faith neutral and singled out Muslims for disfavoured treatment because of the animus of the President against Islam. They added that the Proclamation was manipulated in such a manner (which the plaintiffs called “religious gerrymander”), that in operation, it was prejudicial to Muslims even though the language did not expressly state anything. The supporting evidence was the series of statements made by Trump before and after elections viz. total and complete shutdown of Muslims entering the United States until the country’s representatives can figure out what is going on; Islam hates the USA; problems with Muslims coming into the country; ban Muslim immigration; Twitter links to three anti-Muslim propaganda videos etc. These statements and objectionable expressions of Donald Trump were not considered as a strong argument to favour plaintiffs. The majority held:
Plaintiffs argue that this President’s words strike at fundamental 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 a matter 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. [Emphasis added]
In other words, the Court examined whether the statements of the President indicating animus against Muslims could be useful in reviewing the Proclamation or not. The majority began with a literal interpretation, stating that the Proclamation was “neutral on its face.” The majority, therefore, interpreted the law “as it is” and did not delve into possibility of any hidden agenda behind the law or the operation of the law. It seems this Austinian approach was also necessary to the majority because the Proclamation was a core executive responsibility. It was “core” because the President in this case exercised his authority not in a general area of interest but in the specialised area of national security and foreign policy. Therefore, the statements of Trump may be relevant evidence but not admissible in this case because the authority of the Presidency in these “core” areas dilutes the significance of his statements made before or after poll. Had this not been the exclusive area of national security or foreign policy, the expressions by Trump might have had a different probative and persuasive force. The Court elaborated on the same while discussing the standard of review applicable in this case. One such observation deserves attention:
The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof.
According to the majority, this challenge before the Supreme Court based on the fundamental principles of religious neutrality was not an ordinary case of the violation of fundamental rights under the First Amendment. What made this extraordinary was the deep involvement of national security issues, which indeed mandates the Supreme Court to be conscious and cautious before exercising its armoury of judicial review. The texts of the Proclamation had nothing objectionable to impute animus against Muslims. The plaintiffs insisted to “probe the sincerity of the stated justification for the policy” to explore alleged the hidden agenda behind it. For such a probe, the plaintiffs desired the Supreme Court to take cognizance of the President’s “extrinsic statements”. Was the Court authorised to make such a judicial inquiry, that too with these evidences, under the doctrine of judicial review? In other words, what should be the level of scrutiny of judicial review in cases involving the “admission and exclusion of foreign nationals”?
The majority recollected, with the authority of Harisiades v. Shaughnessy, and Fiallo v. Bell, that for more than a century the entry restrictions were “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” and “[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.” Mathews v. Diaz, was also another authority to suggest that it was “more appropriate to either the Legislature or the Executive” (vis a vis judiciary) to deal with such issues.
Judicial review in visa denial to foreigners: circumscribed or comprehensive
The majority produced an account of judicial precedents to ascertain the scope of judicial review in cases of denial of visa to foreigners. The Court recalled that such cases always involved a circumscribed judicial review, starting with Kleindienst v. Mandel, where the Court had to examine two connected questions. (a) Whether the First Amendment includes the “right to receive information” in a conference through a foreign delegate or not; (b) If such right exists, can the Court inquire into the reasons for a visa denial to the foreign speaker? To the question (a), the Court answered in the affirmative and acknowledged that their constitutional “right to receive information” under the First Amendment was implicated. To the question (b) the Court held that only a limited judicial review is available to the extent of determining whether the Executive gave a “facially legitimate and bonafide” reason for its action or not. The Court reproduced the ratio of Mandel, stating 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 justification” against the asserted constitutional interests of US citizens. [Emphasis Added] This is because of the norm of “deferential treatment” accorded to the Executive especially in the realm of foreign affairs.
Is Mandel applicable?
As the dissenting view of Sotomayor, J. in Trump raised doubts on the applicability of Kleindienst v. Mandel, the Court double checked its opinion on “deferential standard of review.” For this, the majority further quoted from Kerry v. Din that the “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.” The Court also used Fiallo, where Mandel applied to a “broad congressional policy” giving immigration preferences to mothers of illegitimate children. It was also held that “it is not the judicial role in cases of this sort to probe and test the justifications” of immigration policies. Din further supports that Mandel’s narrow standard of review “has particular force” in admission and immigration cases that overlap with “the area of national security.”
Deferential standard of review: other precedents
The majority also relied on other precedents. In Ziglar v. Abbasi, the Court observed that “[j]udicial inquiry into the national-security realm raises concerns for the separation of powers” by intruding on the President’s constitutional responsibilities in the area of foreign affairs. In Humanitarian Law Project, it was held that “when it comes to collecting evidence and drawing inferences” on questions of national security, “the lack of competence on the part of the courts is marked.” In Mathews, it was held that “any rule 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 is highly constrained. The majority, in Trump, therefore concluded that there was no need to “define the precise contours of that inquiry in this case” because conventional application of Mandel suggests that the Court should only evaluate “whether the policy is facially legitimate and bona fide” or not. If the answer is yes that “would put an end to our review.” Despite this judicial finding, the Government suggested that an inquiry extending beyond the facial neutrality of the Proclamation should also be made. This argument reflects the confidence of the Government. In other words, while the Supreme Court felt that Mandel was the end of judicial review, the Government was generous enough to describe Mandel as “the starting point” of judicial review. Therefore, the Court agreed to look “behind the face of the Proclamation to the extent of applying rational basis review.” Rational basis of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Therefore, the plaintiffs’ extrinsic evidence found some weight in this case. However, the policy would be upheld “so long as it [could] reasonably be understood to result from a justification independent of unconstitutional grounds.” The majority rejected the idea that, instead of the rational basis review, a “reasonable observer” inquiry ought to be made applicable in “immigration policies, diplomatic sanctions, and military actions.” Such a “reasonable observer” inquiry was applicable “to cases involving holiday displays and graduation ceremonies.” In the light of the numerous precedential directives discussed above, in cases of foreign nationals’ entry, a more constrained standard of review is the appropriate review model and any judicial inquiry cannot be comprehensive but always be circumscribed. It is correct to mention that the Court has hardly struck down “a policy as illegitimate under rational basis scrutiny” barring a few exceptions where it was not at all possible to “discern a relationship to legitimate state interests” or that the policy was “inexplicable by anything but animus.”
The Court found that there was “persuasive evidence” of a reasonable nexus between entry suspension and national security concerns. The arguments of religious hostility were weak. The legitimate purpose was blocking the entry of those nationals who failed in the vetting process and inducing countries to improve their practices. The central pillar of the argument of the plaintiffs was that the Proclamation was manipulated in such a fashion that it was not a travel ban but a Muslim ban. They supported this argument with the illustration that “five of the seven nations currently included in the Proclamation have Muslim-majority populations.” The Court noticed that the Proclamation is silent on religion and therefore on the face there was no animus. Even if some inquiry was conducted (as suggested by the government), the argument of the plaintiffs did not sound strong because of the reasons that (a) the policy covers just 8% of the world’s Muslim population; (b) Iraq is one of the largest predominantly Muslim countries in the region and is exempted from Proclamation; (c) The Congress and the prior government have already designated them as a potential risk to national security of the USA and this Proclamation has only limited the restriction to those countries; (d) the Proclamation is the product of a worldwide review process undertaken by multiple agencies (e) Based on criteria and progress made by the countries on vetting process the restrictions were lifted. (e) A report was gathered through the Information Act to ascertain the thoroughness of the review process. The report was only 17 pages long. It was argued that such a short report reflected an incomprehensive review of 200 countries. The Court held that it should not be ignored that “simple page count offers little insight into the actual substance” and in these cases of national security all documents cannot be made available. These inquiries rebutted the claim of religious animus or thoroughness of the review process.
The fundamental flaw the majority found in the argument of plaintiffs and the opinion of dissenting judges was that the challenge to the entry suspension under the Proclamation was based not on principles, provisions, precedents, rules of interpretation or limits of judicial review but “on their perception of its effectiveness and wisdom.” It was also argued that the policy was “overbroad and does little to serve national security interests.” The problem was how to acquaint the exact threat to national security? Is the judiciary entitled to know it and is the government obliged to disclose all national security concerns, which “are delicate, complex, and involve large elements of prophecy.” The Court agreed that the Government’s reading of the First Amendment may not deserve deference but litigation involving “sensitive and weighty interests of national security and foreign affairs” does deserve appropriate weight if the Executive comes with evaluation of the facts and situations. The Court was also impressed by three developments, (i) removal of Muslim-majority countries—Iraq, Sudan, and Chad from the list (ii) exceptions for various categories of foreign nationals and (iii) waiver program. Robert, CJ. found that the minority opinion only “recycles” the version of plaintiffs. The plaintiffs argued that the statutory structure under section 1182(f) of INA was sufficient to address the restriction. The majority rebutted this argument because the minority opinion failed to notice that the “Congress has not in any sense stepped into the space and solved the exact problem” which the Proclamation does in detail. Robert, CJ. criticised the dissenting judge, Breyer, J. for presenting only “a piece of the picture”, “citing selective statistics, anecdotal evidence, and a declaration from unrelated litigation”
The majority also examined whether Korematsu v. United States could be a persuasive precedent or not because the dissent compared the challenge with Korematsu. In Korematsu an Executive Order to forcibly relocate US citizens of Japanese ancestry to concentration camps, solely and explicitly on the basis of race, was upheld. The dissenting opinion in Trump invoked this Proclamation as similar to that issued in 1942, which seems an inapt analogy. One need not be a genius to find the clear line of distinction between this Executive Order of 1942 and the Proclamation of 2017. The Executive Order of 1942 was racial on the face of it while the Proclamation of 2017 was neutral. The facts of Korematsu were easily distinguishable. The majority not only rightly rejected the comparison but also declared the Executive Order of 1942 as “morally repugnant”, “objectively unlawful and outside the scope of Presidential authority.” The majority used this opportunity to expressly declare Korematsu judgement as “gravely wrong the day it was decided.”
The Court, therefore, found that there was sufficient justification of national security and the Proclamation survived the rational basis review. The majority, however, did not express any view on the soundness of the policy. The plaintiffs failed to demonstrate a likelihood of success on the merits of their constitutional claim. The majority held the preliminary injunction by the courts below as an abuse of discretion.
In a very brief and concurring opinion, Kennedy, J. acknowledged that the judiciary could not correct all the areas of government function because of the wide discretion accorded to the Executive in certain functions. The officials are required to adhere to the Constitution in all areas even if the judiciary cannot inquire into them. Adherence to the Constitution in these areas, including foreign affairs, becomes far more important because only executive wisdom is the guarantee of constitutional values. His opinion was more in the nature of obiter dicta and a caution to officials that they are obliged to honour the values of the First Amendment of the Constitution irrespective of the scope of judicial review. The brief opinion of Kennedy, J. reflects that though he concurred with the majority judgement (led by Robert, CJ.), which relied mostly on “is law”, he was not comfortable with the expressions of the President against Muslims.
Another member of the bench, Thomas, J., also concurred with the majority and addressed in detail the jurisdiction issue of the Federal Court to issue universal or nation-wide injunction granting sweeping relief. He expressed his concern that this trend has increased in last few decades. According to him, these injunctions “are beginning to take a toll on the federal court system preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.” He presented an elaborate reasoning for his scepticism and concluded that “universal injunctions are legally and historically dubious.” He also warned, “if federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”
VI. Dissenting opinion
The ratio in Trump was divided with a thin margin of 5:4. Four judges delivered two dissenting opinions. Breyer, J. filed a dissenting opinion, in which Kagan. J., joined. The issue framed by them was whether “Proclamation No. 9645 is lawful.” For this inquiry, his subsidiary question was whether “its promulgation or content was significantly affected by religious animus against Muslims.” If so, it would violate the INA or the First Amendment of the Constitution itself. He agreed that if the “sole ratio decidendi was one of national security, then it would be unlikely to violate either the statute or the Constitution.”” However, after his analysis, he concluded that that the Proclamation was not meant to serve the “sole” interest of national security but was a manifestation of Islamophobia and failed to address the visa issues of those groups of cases, which had no proximity with national security. His idea seems to be that a policy or law exclusively (solely) addressing national security cannot be a subject matter of judicial review but if the law also touches other aspects of citizens’ lives and Constitutional values, the same may be unconstitutional. He focused not on the main “text” of the Proclamation but mainly on its “exemptions and waivers.” Moreover, he did not rely significantly on the content of the elaborate exemptions and waivers. He limited his inquiry into the application (the law as it is applied in the society and the perception a reasonable observer holds) of these exemptions and waivers. According to these dissenting judges, such an inquiry into the Proclamation’s enforcement could establish whether it was solely for national security concerns or there was an animus against Muslims. He has chosen to interpret the Proclamation “as” it is “applied” and not as it is “written” on the text. The jurisprudential basis for this priority of “enforcement” over “content” was the idea that “lawfulness is strengthened” if the enforcement part of a law is satisfactory. The second basis for this priority was history or precedent. Breyer, J. compared President Carter’s Iran Order and President Reagan’s Cuba Proclamation. Both contained similar categories of persons, authorized to obtain case-by case exemptions. Both were hailed for their indiscriminate application. The dissenting judges were wondering why the Proclamation of Trump, unlike other similar orders of previous presidencies, was biased in its enforcement and spread an impression that Muslims were selectively targeted.
Thirdly, if the enforcement of strict case-by-cases scrutiny were non-discriminatory, that would mean the Proclamation would follow the basic statutory scheme more closely. Any deviation would not be “across the board” and would be strictly circumstantial. In other words, if the Proclamation were to be enforced without any malice, numerous Muslim individuals from these countries would not be denied entry if they posed no security threat. If the “denial to Muslims is significant, the lawfulness of the Proclamation becomes significantly weaker.” Before examining the enforcement aspect, Brayer, J. noticed that the Proclamation required the Government “to adopt guidance” for the exercise of waiver but “no guidance has issued” except “frequently asked questions”, and they were only a restatement of the Proclamation in plain language. His evaluation of the Proclamation in practice raised other causes of concern based on statistics. He used the comparative way of analysis and found a sharp decline in visas issued to visitors vis a vis those of pre-Proclamation visitors. He expressed his unease that these denials did not seem to constitute a case-by-case basis review of vetting. This was because of the fact that visas were denied to a group of “persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group … would not seem to pose security threats.” The evidences established that the visitors from these Muslim dominated countries had significant business or professional obligations and even close family members were declined visa. The case of asylum seekers or refugees was the same. This small picture did not provide “grounds for confidence” among the minority judges. Breyer, J. therefore, apprehended that the complete picture may be far more confidence breaking and would need further inquiry into the basis of the Proclamation. He also took support from “anecdotal evidence” and referred to a pathetic detail in a report as under:
[O]ne 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... Though this 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. [Emphasis Added]
Breyer, J. also took cognizance of an affidavit filed by a consular official in a pending case, which stated that “consular officers were not allowed to exercise that discretion and the waiver [process] is merely ‘window dressing.’” He admitted that though “declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial fact-findings” “the need for assurance that the Proclamation does not rest upon a Muslim ban,” should be sent back to the District Court for further proceedings. The minority felt that there were evidences of “antireligious bias” (and not only national security issues). Therefore, the Proclamation was set aside.
The second dissenting note is more detailed which was delivered by Sotomayor, J. and joined by Ginsburg, J. They found the Proclamation and the majority judgement as against the “principle of religious neutrality in the First Amendment.” A “reasonable observer would conclude” that the animus of Trump against Muslims, which was advertised during elections, “masquerades behind a facade of national-security concerns” and was repackaged in the form of the Proclamation No 9645. The dissenting invoked the “reasonable observer” review which is a liberal standard of judicial review. “That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.” She based her conclusion on various judicial authorities, which laid down that ‘“[w]hen the government acts with the ostensible and predominant purpose’ of disfavouring a particular religion, ‘it violates that central Establishment Clause value of official religious neutrality.’” Sotomayor, J. blamed the majority of “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering” of countless persons. She also asserted that the majority briefly recounted the “highly abridged account” of Trump’s intention but did not notice the far “more harrowing picture” of “hostility and animus towards the Muslim faith” which was presented to a “reasonable observer.” Sotomayor, J. ascertained the intention of Donald J Trump through his various statements made before poll, after poll, and even after various months of becoming the President of the USA. For example, Jehadi people have no sense of reason or respect of human life; Christians would be given priority for entry as refugees into the United States; surveillance of mosques etc. Sotomayor, J. found that Trump’s expressions were part of the same transaction establishing his intention against Islam, which he aggressively translated into a part of official policy and law. The dissenting judges were more disturbed because (i) Trump continued his objectionable expressions even after becoming President, that too using official social media tools, (ii) Trump seemed to be justifying indiscriminate killing by “General Pershing’s massacre of Muslims in the Philippines.” Trump tweeted from his official handle to “Study what General Pershing ... did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” The judges in minority declined to recognise the express denial of animus against Muslims by Trump because a “lone assertion hardly qualifies as a disapproval of the President’s comment about Islam.”
Can the court “look behind” the exercise of discretion? The majority held through Kleindienst v. Mandel, that the “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification.” Disagreeing from the majority, Sotomayor, J. referred Kerry v. Din, where Kennedy, J. applied Mandel’s holding and elaborated that courts can “‘look behind’ the Government’s exclusion of” a foreign national if there is “an affirmative showing of bad faith on the part of the consular officer who denied [the] visa.” He also held that “the extent to which Mandel and Din apply at all to this case is unsettled.” On the applicability of Mandel, the majority satisfactorily responded as discussed earlier while examining the majority judgement. The dissenting opinion also criticised the rational standard of review (instead of reasonable observer or narrow or stringent standard of review where the court inquires the elaborate reason of executive decision to satisfy a reasonable person) applied by the majority because “the Court, without explanation or precedential support, limits its review of the Proclamation to rational-basis scrutiny. That approach is perplexing, given that in other Establishment Clause cases, including those involving claims of religious animus or discrimination, this Court has applied a more stringent standard of review.” She also held that “even under rational basis review the Proclamation must fall” as the Proclamation has no legitimate basis because of an “overwhelming record evidence of anti-Muslim animus.” The Proclamation is “‘divorced from any factual context from which we could discern a relationship to legitimate state interests,’ and ‘its sheer breadth [is] so discontinuous with the reasons offered for it’” that the policy is “inexplicable by anything but animus.” The argument that the Proclamation is the result of a worldwide review process did not find favour from minority judges. They apprehended that the procedure was contaminated due to the presence of officers who have openly exhibited their bias against Muslims. The dissenting judges declared that even if this aspect were to be set aside, “the Proclamation rests on a rotten foundation.” Another reason to discard such an administrative review process was the fact that the Government refused to disclose to the public the review document “even in redacted form.” The dissenting judges took judicial notice that the review process report, found through the Freedom of Information Act, 1966, boiled down to mere 17 page-long document, which raised serious doubts of it being comprehensive, especially when it was claimed that the vetting practices included hundreds of countries. Sotomayor, J. also questioned the need of this Proclamation in the presence of statutory structure of Immigration and Nationality Act (INA). There was also a rigorous vetting scheme under this statutory format, which required information sharing, and addressed national security concerns. “The Government remains wholly unable to articulate any credible national-security interest that would go unaddressed by the current statutory scheme” or vetting process absent the Proclamation. The dissenting view also resorted to expert opinion, to indicate that the government’s claims of national interest were not correct. Sotomayor, J. supported the views of Breyer, J., another minority opinion, and concluded that “there is reason to suspect that the Proclamation’s waiver program is nothing more than a sham.”
Sotomayor, J. however, agreed with the majority for overruling Koremastsu which was “formal repudiation of a shameful precedent” which was “laudable and long overdue.” At the same time, she criticised the majority judgement for protecting “official religious prejudices” and “blindly accepting” the “superficial claim of national security.” She observed that “the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”
It seems the dissent has mixed up the political question with legal question. Foreign affairs and national security are a matter of exclusive political judgement and the judicial role is limited to constitutionality. However, the dissenting note has focused more on the execution part of law to question the desirability of the Proclamation. They ignored that the history of the Supreme Court in the area of national security is tilted more towards a conservative or textual approach rather than a liberal or wide interpretation.
VII. Schenck to Trump : Hundred years of national security jurisprudence
The majority judgement in Trump might have surprised many because the Supreme Court in the USA is very liberal in fundamental rights cases. However, with this literal approach, the Supreme Court has only followed trends that started a hundred years ago with the passage of national security enactments (the Espionage Act, 1917) in the USA, which was upheld in Schenck. An archival account of cases decided by the Supreme Court suggests that the judicial decisions of ordinary days are different from those of extraordinary days (when the USA faced challenges to their security and sovereignty). The Court ordinarily behaves as a protector of liberty, but in difficult times, like that of war (be it World War or Cold War or the war against terror), they have behaved as conservative courts and have made a conscious departure from set trends. In difficult times, they have upheld the laws dealing with national security issues.
Though the USA is known for protecting an extreme form of “free speech,” “in a series of decisions in 1919 and 1920, the US Supreme Court consistently upheld the convictions of individuals who had agitated against the war” using non-violent means like “anti-war leaflets.” During World War I, the Espionage Act, 1917 and the Sedition Act, 1918 were passed. These Acts provided for the punishment of persons making seditious statements only (interfering with the operations of the military and making false writing about military) even if they did not resort to violence or there was no proof of incitement of violence. The law made it penal to utter or print any profane language that interfered with the operation or success of the US military or criticized the government or the Constitution. Mere utterances of such nature attracted punishment of twenty years in prison.69 The first case under the Espionage Act, 1917 to reach the Supreme Court was Schenck v. United States.71 Schenck was convicted under the law though he used only leaflets to display his expressions and his disappointments against war. The law was upheld and a unanimous verdict was reached by Holmes, J. who evolved the idea of "clear and present danger" test. His reasoning for a conservative approach was that:
when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. [Emphasis Added]
Similarly, a New York state law criminalised the advocacy of the violent overthrow of the US government. In the case of Gitlow v. New York,74 the accused (G) printed “Left Wing Manifesto” in his newspaper “The Revolutionary Age” which advocated the forceful overthrow of government. Gitlow argued that “no violent action was precipitated by the article.” There was no proof of a “clear and present danger” due to the publication. He was, however, convicted. The conviction and the law criminalising such advocacy were challenged in the Supreme Court of the USA. The Court invented the “bad (or dangerous) tendency” test and rejected the precedent of “clear and present danger” test established in Schenck v. US. The ratio decidendi of Gitlow was as under:75
[The State] cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. [Emphasis Added]
The Supreme Court of the USA upheld convictions under these laws with strong dissenting judges in a few cases. The message of the majority of the judges of the Supreme Court was that “while the nation is at war, serious, abrasive criticism ... is beyond constitutional protection.” [Emphasis Added] 70
The judgements (other than Schenck), upholding punishment for subversive utterances in the late 1920s, were condemned by later decisions of the Supreme Court of the USA in 1950s and 1960s. However, the judicial criticism of the decisions of 1920s through the judicial opinion of 1950, and of 1960 came only at a time when the situations were normal in the USA. In Dennis v. United States77 a conspiracy to violently overthrow the government was upheld by the Supreme Court under the Smith Act of 1940.79 The Court concluded that, mere planning of violent overthrow of government is a grave harm of such a nature that “the danger need neither be clear nor present to justify suppression.”80 Dennis was followed by cases where the Supreme Court upheld82 the validity of the Subversive Activities Control Act, 1950.81 Dennis was overruled in 1969 in the case of Brandenburg v. Ohio,83 where the Court held that mere advocacy of committing crime cannot be punished because it would violate the first amendment. It may be only partially permissible if there was apprehension to incite "imminent lawless action."84 The ratio laid down was that “mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action.” Brandenburg is symbolised again as a high watermark of freedom of speech and expression. However, what is noticeable is the fact that Dennis was a judgement delivered in difficult days when the communist ideology was posing risk to the national security of the USA. Brandenburg was also a judgement which was delivered in difficult times of the Vietnam war, Cold War with the USSR when national security issues were a concern for the USA. However, unlike the 1920s or 1940s there was no threat of a full-fledged war. Secondly, Brandenburg dealt with a problem of criminal law and not those of defence, national security or sovereignty of the country, while Schenck or Dennis dealt not only with law and order issues but also the security of the country.
Difficult times of violence risking national security resumed its ugly face in America with the 9/11 terrorist attacks. An issue of fundamental right was raised in Holder v. Humanitarian Law Project.92 A few NGOs proposed to train foreign terrorist organisation on political advocacy, how to explore assistance from the UN, how to utilise humanitarian resources, where to find legal aid etc. 93 A federal law prohibited and criminalised “material support” to foreign terrorist organisation (FTO). 94 The legal inquiry was, whether the membership of an FTO would be constitutional valid or not?.. Whether a person may join an FTO to teach them lawfully permissible purpose like “training, expert advice or assistance, personnel, and service”? The majority did not accept the argument raised in Brandenburg. They upheld the law prohibiting mere membership because the law is “carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” Brandenburg allowed abstract unlawful action (advocacy for crime in limited case) as a part of “protected expression.” The same could have been applied here also. However, the Court in Humanitarian Law Project mandated that such lawful advocacy could not get protection of first amendment of the Constitution if it is with the coordination of foreign terrorist organisation. The change in approach was because of the established national security jurisprudence. The conservative Court not following Brandenburg was not a trend change. In all times of risk to country (be it civil war, war, cold war or terror war) the judiciary has supported the law made to serve national security. The Court held that coordinated activity can be “free resources to support terrorist activities.” Such activities “may strain diplomatic relationships between the United States and countries in which the FTOs operate” and “official cooperation and interaction with non-governmental entities can lend legitimacy to terrorist groups,” “foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate, and disrupt” the USA’s security interests. They might “undermine the government’s interest in combating those organizations.” A more restricted judicial review in national security issues is a judicial convention and is a command of deferential standard of review. Therefore, Humanitarian Law Project was a persuasive precedent of great value, rightly referred in Trump. The majority in Trump followed the same convention and the command of the constitutional jurisprudence to exercise restraint in national security cases.
VIII. Lessons for India
The judiciary in India is also facing situations where it has to address the issue of national security, foreign policy, entry of refugees, illegal migrants, validity of counter terror legislations etc. Should it behave like a liberal court in all cases or should it be conservative in these matters of national importance? Should it entertain them like ordinary cases of fundamental rights or should it exercise restraint the way the US Supreme Court has done through its majority opinion? Should it accord “deferential standard of review” or should it make an in-depth inquiry of decision-making process following the “reasonable observer” standard? Four illustrations can be discussed.
A) Can migrants from Pakistan and Bangladesh be granted permission to stay in India? Can Rohingya from Myanmar be also entitled to similar treatment as the migrants from Pakistan and Bangladesh? Can the Government of India make different treatment based on their nationality? Will a different treatment deny the right to equality? In the case of Suo Moto v. Union of India the Government of India has submitted that it is processing for “Short Term Visas, Long Term Visas and citizenship to the migrants from Pakistan belonging to minorities, such as Hindu, Bodh, Jain, Sikh, Parsi and Christian communities.” Can the government deny similar facilities to Rohingya people? Will it be a simple case of fundamental right violation of article 14? The US Supreme Court has treated this issue not as a simple case of fundamental right violation as discussed above through various decisions but as an extraordinary situation of foreign policy where laws made by the Congress or Proclamations issued by different Presidents have been upheld though they were discriminatory as to nationality of people. The Supreme Court in the USA rightly believes that national security, foreign policy, visa issuance etc are areas where the judiciary should interfere only to a limited extent. They are neither equipped nor made to decide these issues unless they are solely based on animus to a religion and have no link with risk to national security. Rohingya in India are entitled to minimum needs of life like decent living, health, food, water etc. If these human rights are violated, one can approach the Supreme Court to make these rights available to them. However, that is the limit of judicial review as held in a number of judicial decisions in the USA. Once the government of India decides to deport Rohingya in pursuance of foreign policy and national security, the decision can be judicially reviewed only to a limited extent by examining “facially legitimate and bonafide” reasons for its action. Once the Court is satisfied to this extent, it “will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted claim under international law and human rights. The rule of “deferential standard of review” would dominate in these narrow situations of foreign policy or national security.
B) Similarly, the Parliament passed amendments in 2019 to make modifications in the Citizenship Act of 1955. This makes the naturalisation process easier – except for displaced persons of the Muslim faith. The new Act will indeed benefit people belonging to Buddhist, Christian, Hindu, Jain, Zoroastrian and Sikh faiths, which are considered minority religions in their countries of origin, such as Afghanistan, Bangladesh, and Pakistan, and indigenous tribes such as Buddhist Chakmas and Hindu Hajongs from Bangladesh. However, Muslims persecuted in their countries of origin, such as the Burmese Rohingya will not benefit from the new special status. The law which was passed was challenged on the ground of violation of the equality clause. While article 14 and article 21 are available to foreigners, article 15 is applicable only to citizens. The Supreme Court should balance the interest of human rights with that of risk to national security and should uphold the amendment in the light of “deferential standard of review” if the government is able to give “facially legitimate and bonafide reason” for it.
C) The Supreme Court of India has upheld the constitutional validity of all the counter terror legislations and the laws made to deal with national security issues. However, in a few recent cases, the Supreme Court has interpreted a few provisions (here, membership of a terrorist organisation) of counter terror legislations in the light of the US model of fundamental rights, though previous decisions have considered the validity of the issue. Relying on the minority judgements of the US Supreme Court on national security issues, they have accorded supremacy to fundamental rights over national security. In Raneef, Arup Bhuiyan and Indra Das Katju, J. ruled that mere membership of a banned terrorist organisation cannot be penal unless the prosecution proves additional actus reus on the part of the accused. In other words, every such membership of a terrorist organisation must accompany the proof that the accused “resorts to violence, incites people to violence, or creates public disorder by violence or incitement to violence.” These words were imported from Kedar Nath Singh in India and Brandenburg in the US. Both the judgements were delivered, when the threat of terrorism in its new avatar was not present at all. Katju, J. in these cases has selectively used those judicial precedents which rejected the theory of “guilty by association.” While using these precedents his attention was not brought to the applicable decisions on terrorism like the Humanitarian Law Project. The plain application of the American decision in this selective manner is not safe in our country because “the menace of terrorism which has taken an endemic form indulging in wanton killings, arson, looting of properties and other heinous crimes affecting human rights and individual liberty,” cannot be compared with the situations prevailing in the 1960s. The judgement has not at all considered the troubled situations India is facing due to various forms of violent insurgency. Katju, J. has not noticed that the Supreme Court in the USA has behaved differently when the situation is troubled and national security is involved in the Supreme Court cases. Brandenburg was decided in the USA not on the issue of law and order and not on defence of the country. It has, therefore, little application in India, which is facing a proxy war of terrorism, which is far more complex and troublesome than that of America’s war on terror. America has no threat from a neighbouring country like Pakistan that keeps on exporting terrorism, nor does it have to manage a population of more than 140 crore. There is no match for criminal justice administration. The diversity and the security infrastructure of the two countries are also not comparable. While importing opinion from the US Supreme Courts, Arup Bhuyan has ignored the established jurisprudence of national security in the USA as discussed above. Fortunately, it was before a larger bench, which has decided accordingly in the case of Arup Bhuyan v. State of Assam. The Court decided that provisions of UAPA 1967 which makes the membership of a terrorist organisation as penal is constitutionality valid. Three precedents of 2011 “are in contradistinction to the scenario in question in India”. This judgement is admirable considering threat perception, secessionist tendencies, influence of social media, increasing radicalisation of youth, and presence of the provision of guilt by association in India in criminal jurisprudence and deferential standard of review in cases of terrorism, which pose sui generis threat to national security.
D) However, the judicial review of all matters of foreign affairs cannot be given the same narrow application. An issue of foreign affairs deserves the weight of “deferential” treatment but it may or may not have national security dimensions. The High Court of Delhi has recently decided two cases differently. In the case of Kasha Elizabeth Vande v. Ministry of Home Affairs the court upheld the decision of deportation of an American lady staying in India for the last fourteen years on a business visa. It was alleged that she gave incorrect information. She also floated an NGO in violation of visa norms. Though the faults alleged were not very serious in nature, the high court has adopted a literal approach. With the help of the Constitution Bench decision of Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal, the Court held that under article 226 “the relief asked for must be one to enforce a legal right.” The aggrieved American woman could not establish a legal right to further stay in India. Article 19 was not available to her as she was a foreigner. The Court also relied on Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, which upheld the “absolute and unfettered discretion” of the government in the matters of the Foreign Act, 1946. Reliance on this judgement to this extent of absolutism does not sound very convincing because of the later developments of arbitrariness principle under article 14. The aggrieved woman was also not given any fair hearing. The Court again relied on the Hans Muller followed by Louis De Raedt v. Union of India, where it was held that even if a hearing was not provided, the aggrieved did not cause any prejudice to her. Despite objections as raised above, the order is valid because the Court was only required to make a prima facie inquiry and not a roving probe into the matter of foreign entry. The second case i.e. Mohammad Abdul Moyeed v. Union of India indicates the limitation of deferential level of judicial review in foreign affairs cases. In every case of foreign affairs, the government cannot claim its sovereign authority, at least when the aggrieved party has a direct link with Indian citizens. In this case, Abdul Moyeed, a Canadian citizen born and brought up in India, was declined entry in India on the ground that his conduct in India is doubtful. He had one Indian wife with children in India. He was an Overseas Citizen of India Cardholder (OCI). One of his children was differently-abled. The government alleged that he attended “Tableeghi Jamaat”, visited mosques and mingled with local Muslims etc. The Court held that he can claim article 14 and article 21 and his family relations in India strengthen his claim. Therefore, the rules of natural justice have to be followed. The court also found that tabligh work was not an illegal activity. (The court indeed started making an in-depth inquiry). Moreover, the allegation was that he believes in “orthodox Islam with an intention to propagate that Muslims should unite and should fight against western countries and the USA.” Another allegation was that he might be involved in funding terrorism. The Court held that the allegations were “nebulous and based on surmises, at least, at this stage”, because not an iota of evidence was produced to substantiate the allegations of the government. Indeed, the Visa Manual regulates tabligh work. The high court directed the government to re-examine its decision and further asked the executive to apply the doctrine of proportionality in case of a punishment. The Court also warned that “profiling a person solely on the basis of the religion he or she practices is contrary to our constitutional creed.” Unlike Kasha Elizabeth Vande, this decision i.e. Mohammad Abdul Moyeed adopts a “rights” based approach and has some closeness with dissenting opinion of Trump because of the detailed inquiry the Court has made. However, such detailed inquiry cannot be termed as beyond the power of judicial review in the existing case. Has the case been of a foreigner having no close family links in India, or had the government been able to present some evidence to draw the inference of national security risk the decision would have been different.
IX. Concluding Remarks
Judicial review has remained a contentious issue in all democracies. As the judiciary lacks democratic legitimacy unlike law making bodies, the power to declare a law as unconstitutional has generated various controversies. These controversies have led to different standards of judicial review. The obligation of the Supreme Court is to protect, preserve and promote fundamental rights in a modern democracy. This is possible only when the provisions of fundamental rights are interpreted liberally and not literally. This time-honoured principle has a few limited but established exceptions. National security and foreign policy constitute those exceptions when the Supreme Court transforms into a conservative court. It sticks more to the doctrine of separation of powers, accords greater weight to the principle of constitutionality and applies the doctrine of deferential standard of review with greatest force. National security and foreign policy are a regular affair, be it war or peace but at the difficult times of civil war, war, cold war, proxy war or terror war, this finds a unique significance. Fitzgerald also states that “the fundamental requirement of any society is the ability to protect itself against annihilation or subjection; and the chief duty of any government is to safeguard the State and its institutions against external and internal attack.” In difficult times, the judiciary has to trust the executive and the Parliament more because they are well acquainted with the real risks to the security of the State. Therefore, it has to furl its wings of judicial review in these cases. The US Supreme Court judgement on Trump is a reflection of this appreciation. The Supreme Court has never hesitated to leave its liberal image in times when the US felt a threat, be it external or internal. This State oriented interpretation of the Supreme Court (called as deferential standard of review) has been criticised by many scholars, who say that if the Constitution remains the same in war and peace, why not the Supreme Court? They miss the point that the Supreme Court is authorised to interpret laws not based on the “text” of the Constitution but have to consider the “purpose” of the Constitution. Liberty, rights and freedom are safe only in a strong as well as secured State with an independent judiciary. The new millennium, led by revolutionary changes in technology, has opened new doors for “free trade of ideas.” It is also witnessing the ugly and deadly face of global terrorism, which is an enemy sui generis. A stronger enemy needs stronger power. The majority opinion in the US Supreme Court in Trump has established that advocating a “rights based” broad standard of judicial review in the difficult times of war on terror is a deeply flawed concept. The Supreme Court of wartime is distinct from the Supreme Court of peacetime. This is a “distinction with difference.” They inaugurated national security jurisprudence hundred years ago in Schenck, developed it further in the 1950s, applied it in the Humanitarian Law Project and brought about its culmination in Trump. The Indian judiciary has learn this lesson while deciding the issues in Arup Bhuyan case, Rohingya Refugee cases. In Citizenship Amendment Act, National Register of Citizens and other cases where religion and pluralism meets national security and foreign policy concerns the Court has to be cautious of this national security jurisprudence and foreign policy domain.
