Anurag Deep*
Abstract
[The competing claim of security vis a vis
liberty is the subject matter of this comment, which is divided into six parts.
Part I introduces the three travel ban orders by the US President with facts
and issues. Part II deals with majority opinion on statutory and constitutional
challenge with special emphasis on the scope of judicial review (deferential
standard vis a vis reasonable observer review) in cases involving
national security and foreign affairs. Part III places a note on minority
opinion. Part IV scans hundred years of national security jurisprudence from Schenck to Trump. Part V proposes concluding remarks.]
I. Introduction
The
US Supreme Court has upheld the constitutional validity of the controversial
Proclamation of the President, in the case of Trump v. Hawaii.[1] The Proclamation imposed travel restrictions and was
condemned by many for the anti-Muslim stand of the President Donald Trump. The conservative
judgment of the progressive Supreme Court, therefore, surprised many because the
US Supreme Court is famous for the protection of extreme forms of liberty in
the USA. However, the trends strongly suggest that the peace time Supreme Court
is different from war time Supreme Court in the USA. Whenever the US Court found
the country is facing a troubled phase (war, cold war or terror war), they have
always accorded “security” a priority, over “liberty.”
After being elected as President, Donald
J. Trump gave “political and bureaucratic expression to the restrictionist
vision”[2] and issued three executive orders, last being the
Presidential Proclamation[3] no 9645.[4] He
exercised his authority under the Immigration and Nationality Act, 1952
(INA-amended in 1965). NIA vests in the
President the power to restrict entry of foreign nationals if it “would be
detrimental to the interests of the United States.”[5] The Presidential order was
neutral in text. In application, it prohibited the entry of all citizens
of seven countries viz. Iran, Iraq, Libya, Somalia, Sudan, Syria, and
Yemen.[6] These countries are Muslim
countries. The travel ban led to the immediate cancellation of thousands of
visas. There was no doubt that the Executive orders “stranded its residents
abroad, split their families, restricted their travel.”
The
executive orders and the Proclamation were challenged in the federal district
courts,[7]
circuit courts[8]
and the Federal Supreme Court of the USA for violation of INA as well as the First
Amendment [establishment of religion] etc.
US Supreme Court
When
a federal district court issued a temporary restraining order (TRO) on the
travel ban followed by approval of the circuit court, the Trump government appealed to the Supreme Court of the USA[9]
which stayed the order of the appellate court and allowed the travel
restrictions with minor modifications.[10] 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. The Supreme Court focussed on
two issues.
i.
Whether the President had authority under the Immigration and Nationality Act,
1952 (INA) to issue the Proclamation, and
ii.
Whether the entry policy violated the Establishment Clause of the First
Amendment?
II. Majority judgment
The
judgment was thinly divided and out of nine, five judges upheld the Proclamation.
The central point of the argument was that the law i.e proclamation “as it is” is bad in its
content as well as its application. The majority, however, held that INA
provides broad discretion because section 1182(f) of INA vests the President
with “ample power” to impose entry restrictions. Section 1182(f) of INA 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. The delegation under Presidential Proclamation was
comprehensive. 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.”[11]
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 government has lifted the entry ban on various
countries once they addressed the security concern and found fit in the vetting
process. This indicates that in application also the law is open and not
discriminatory.
Admissibility
determinations and visa issuance: difference
It
was argued that the Proclamation made discrimination based on nationality which
is prohibited under section 1152(a)(1)(A) of the INA. The majority rejected
this argument on the ground that visa issuance and admissibility determinations
are two different things and they operate in separate fields. 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. 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. If issue of visa automatically guarantees
entry, 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.”[12]
Therefore, the Supreme Court decided that the Proclamation was not inconsistent
with the statutory regime of the INA.
Constitutional Challenge
The
Proclamation was also challenged on constitutional parameters that it was
against the establishment clause of the First Amendment. The relevant part the
First Amendment provides that the “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” The
central argument of the plaintiffs and the dissenting judges 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.[13]
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; 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:[14]
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 might 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:[15]
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. [Emphasis Added]
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 petitioners argued that there was a
hidden agenda behind the Proclamation which was exhibited by 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?
Judicial review in visa denial: circumscribed or comprehensive
The
majority held that entry of foreign nationals is a “fundamental sovereign
attribute” of government that always involved a circumscribed judicial review.[16]
Kleindienst v. Mandel,[17]
was leading decision to the precedential discussion through which 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.[18] If it is so, the Court “will neither look behind the exercise of that
discretion, nor test it by balancing its justification” against the asserted
constitutional interests of US citizens.[19]
This is because of the norm of “deferential treatment”
[20]
or “respect for the political branches” accorded to the Executive especially in
the realm of foreign affairs.[21]
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.[22]
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.[23]
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.”[24] The Court found that the legitimate purpose was
blocking the entry of those nationals who failed in the vetting process and
inducing countries to improve their practices. 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. These inquiries rebutted the claim of religious animus or lack
of 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.”[25]
The government is not obliged to disclose all national security concerns, which
“are delicate, complex, and involve large elements of prophecy.”[26]
Robert, CJ. also observed that the minority opinion only “recycles” the version
of plaintiffs which presents statistics selectively, rely on anecdotal evidence
and produces only “a piece of the
picture.[27]
The majority also rejected the comparison of Korematsu[28]
with Trump which was racial on the face of it while the Proclamation of
2017 was neutral. The majority used this opportunity to expressly declare Korematsu
judgement as “gravely wrong the day it was decided.” Indeed minority
opinion also supported the unconstitutionality of Korematsu.
The
brief and concurring opinion of Kennedy, J. reflects that though he agreed 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. He also
warned, that “if federal courts continue to issue them, this Court is duty
bound to adjudicate their authority to do so.”
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.
III. Dissenting opinion
Out of Nine, four judges delivered two dissenting opinions. Breyer,
J. filed a dissenting opinion, in which Kagan. J., joined. He held 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. For example, patients (even child) seeking immediate medical
attention, academicians, students, family members, were denied visa. 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. 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 dissenting note[29]
is more detailed which was delivered by Sotomayor, J. and joined by Ginsburg, J. They found that the “ostensible and predominant purpose” of the
Proclamation was to disfavoure a
particular religion, which is against the
constitutional command and therefore, it was contrary to the First
Amendment. Sotomayor, J. applied “reasonable observer” test[30]
of judicial review to conclude that the animus of Trump against Muslims “masquerades
behind a facade of national-security concerns.” Proclamation No 9645 was a
repackaging of the same animus.[31]
She criticised the
majority who ignored the facts, misconstrued legal precedent, and turned a
blind eye to the pain and suffering of countless persons.[32] Trump’s expressions were part of the same transaction
establishing his intention against Islam, from pre poll promises to post poll
policy leading to the proclamation. She
also held that the Proclamation cannot stand “even if rational standard review is
used”, because the officers executing it were openly biased against
Muslims. The review document was not
made available “even in redacted form.” Evan the government’s claims of
national interest were not correct.[33]
Therefore, “the Proclamation rests on a rotten foundation”[34]
It
seems the dissent has mixed up the political question with legal question.
Foreign affairs and national security is 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. The peculiarity
of the judgment lies in the fact that it was unanimous on a few less
significant issues like stay on TRO, locus and overruling of Korematsu.
IV.
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. It
has been criticised by scholars. A commentator in Yale Law Journal referred
this as “very-near-blind deference to the executive branch” and predicts that “one
day in the future, Trump v. Hawaii is eventually overturned.”
[35]
Another commentator in the Harvard Law
Review writes
that “the Court deviated from its usual approach to reviewing claims that a law
arises from an unconstitutional motive. What remains unclear is when in the
future the Court will take the same approach.”[36] However,
a close scrutiny of various precedents suggests that this judgement is not a
trend change and any overruling of Trump
in future does not always mean the judgement was wrong. Trump takes a literal route to uphold
the travel ban proclamation but, the Supreme
Court has only followed the literal trends on difficult days. 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 terror war), they have behaved as a
protector of national security laws, changed itself as a conservative court and
have made a conscious departure from set liberal trends. In difficult times,
they have upheld the laws dealing with national security issues.
The
origin of this literal trend may be traced a hundred years ago with the passage
of national security enactments (the Espionage Act, 1917) in the USA. During World War I, Schenck was convicted under the Espionage Act, 1917 though he used only leaflets to display his
expressions and his disappointments against the participation of USA in the war.
The Supreme Court in Schenck v. United States[37] 37 upheld
the law 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: [38]
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]
[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.” [41]
[Emphasis Added]
The
trend of upholding national security laws continued post World War II. In Dennis v. United States[42] while dealing with the Smith
Act of 1940[43]
the Supreme Court held that “the danger need neither be clear nor present
to justify suppression.”[44]
Dennis was followed by cases where
the Supreme Court upheld[45]
the validity of the Subversive Activities Control Act, 1950.[46]
Brandenburg
and Trump
Dennis was overruled in 1969 in the case of Brandenburg v. Ohio,[47]
where the Court held 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.” The criminal statute of Ohio was
declared unconstitutional. 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 Vietnam war,
and Cold War with the USSR
when national security issue was a
concern for the USA. Why the Supreme Court interpreted Trump conservatively
and did not follow liberal interpretation of Brandenburg? Even minority
judgement does not mention it because Brandenburg is not
relevant so far as national security laws are concerned. Unlike 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 country, while Schenck
or Dennis dealt not only with law and order issue but
also the security of country.
The trend of twentieth
century continued in twenty-first century when 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[48]
which was relied on by Trump. In Humanitarian
Law Project, a few NGOs desired to become member of foreign terrorist
organisation (FTO) with the objective to give training to foreign terrorist
organisation on political advocacy.[49] A federal law prohibited and criminalised
“material support” to foreign terrorist organisation (FTO).[50]
The Court 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.” The conservative
Court not following Brandenburg was not a trend change. In all times of
risk to country (be it civil war, world war, cold war or terror war) the
judiciary has supported the law made to serve national security. 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. Therefore, the criticism that
the US Supreme Court departed from its previous jurisprudential approach is not
convincing.[51]
V. Concluding Remarks
Judicial
review has remained a contentious issue in all democracies. As the judiciary
lacks democratic legitimacy unlike legislatures, 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.[52]
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.”[53] In
difficult times, the judiciary has to trust the executive and the Parliament
because they are well acquainted with the real risks to the security of 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 argue 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. 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 Humanitarian Law Project and brought
about its culmination in Trump. The
Indian judiciary should learn this lesson while deciding the issues in
Arup Bhuyan case, Rohingya Refugee, Citizenship Amendment Bill, National
Register of Citizens and other cases with national security and foreign policy
overtones.
*
Associate Professor, Indian Law Institute, New Delhi.
The author is grateful to Prof. S. N. Singh, Former Dean, Faculty of Law,
University of Delhi, for his review comments. He also acknowledges Ms. Charvi
Kumar, Ph.D. Research Scholar at the Indian Law Institute for proof read and
comments.
[1]
585 U. S. (2018). It was decided on June 26, 2018. The ratio was 5:4. Roberts,
C. J., (with Alito, and Gorsuch, JJ.) delivered the majority opinion of the
Court. Kennedy, and Thomas, JJ., filed concurring opinions. Breyer, J., (with
Kagan, J.) and Sotomayor, J. (with Ginsburg, J.) filed dissenting opinion, The
judgement, hereinafter referred as Trump, is available at : https://www. Supreme court. gov /
opinions/17pdf/17-965_h315.pdf, (last visited on July 12, 2018).
[2] Cristina
M. RodrÃguez “Trump v. Hawaii
and the Future of Presidential Power over Immigration,” available at :
https://www.acslaw.org/analysis/acs-supreme-court-review/trump-v-hawaii-and-the-future-of-presidential-power-over immigration, (last visited on Feb 2, 2019).
Cristina M. RodrÃguez is Leighton Homer Surbeck Professor of Law, Yale Law
School.
[3]The
President issued three instruments. Executive Order (EO)-1. A federal district
court stayed EO1. Therefore, the President issued EO2 replacing EO1, which was
also stayed, but the US Supreme Court lifted the stay. EO2 was replaced by the Presidential Proclamation no 9645.
[4]
Proclamation 9645- Enhancing Vetting Capabilities and Processes for Detecting
Attempted Entry Into the United States by Terrorists or Other Public-Safety
Threats, issued on Sept 24, 2017, available
at : https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/,
(last visited on July 13, 2018).
[5] 8 U.
S. C. s. 1182(f).
[6]
82 Fed. Reg. 8,977-78 (the Immigration and Nationality Act (INA) s. 217(a)(12),
codified at 8 U.S.C. s. 1187(a)(12).
[7]
Article III of the USA Constitution. Unlike
in India, the validity of a federal law in the USA can be challenged in federal
district courts.
[8]
There are 13 appellate courts that sit below
the U.S. Supreme Court, and they are called the U.S. Courts of Appeals.
The 94 federal judicial districts are organized into 12 regional circuits, each
of which has a court of appeals.
[9]
Trump
v. Intern. Refugee Assistance Project, Decided on June 26, 2017, available at https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf,
(last visited on July 12, 2018). Also, Nos.
16-1436 (16A1190), 16-1540 (16A1191) : https://www.leagle. com/decision/ insco
2017 0626a87, (last visited on
July 12, 2018).
[10]
News item available at : https://www.nytimes.com/2017/06/26/us/politics/supreme-court-trump-travel-ban-case.html,
(last visited on July 12, 2018).
[11]
Roberts, C. J. in Trump at
12.
[12]
Id. at 23.
[13]
Id. at 26.
[14]
Id. at 29.
[15]
Id. at 29.
[16]
Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952) ; Fiallo
v. Bell, 430 U. S. 787, 792 (1977).
[17]
408 U. S.(1972), at 756–757. The ratio was 6:3. Ernest Mandel, a Belgian
journalist who called himself as “revolutionary Marxist”, was invited to speak
at Stanford University. The government refused his entry visa in the USA. The
Supreme Court upheld that the listeners have constitutional “right to receive
information” under first amendment of the US Constitution though the denial of
entry of Mandel was upheld.
[18]
Id. at 769.
[19]
Id. at 770.
[20]
Among the possible standards of review, the
courts may adopt either a de novo standard or a deferential standard.
Deferential standard believes in presumption of constitutionality because it
reposes confidence that the lawmakers would not make a law contrary to the
constitutional principles and policy. The deference applied to national
security and foreign policy is considerably greater than those applied to other
cases. Therefore, the Court cannot inquire beyond what is expressly available
in the text. De novo standard does not believe in the presumption of
correctness. It may go beyond the text to examine the sufficiency and
correctness of decision. For example in Kerry v. Din, 576
U.S. (2015) Kerry, the Secretary of
State, refused to grant visa to Kanishka Berashk on the ground that he was
engaged in “[t]errorist activities,” but the officer provided no further
information. Kanishka Berashk was a resident citizen of Afghanistan and
former civil servant in the Taliban regime, who was married to Fauzia Din.
Fauzia Din was a naturalised citizen of the USA. Her husband, therefore, was
classified as an “immediate relative” who was entitled to priority immigration
status. The majority held that the Court cannot ask detailed report or the
ground on which Kanishka Berashk was found to be engaged in terrorist activity.
The conclusion was based on Mandel case.
[21]
Kerry v. Din, 576 US (2015).
[22]
One may contrast this with Manohar Lal Sharma v.
Narendra Damodardas Modi, 2018 SCC OnLine 2807, also known as Rafale
judgement. In this case, the defence deal of Rafale combat aircraft was in
question and the petitioners requested to issue appropriate orders to probe any
corruption angle. The government of India was asked to submit pricing details
of the defence deal in a sealed cover. The full bench observed that they are
making this order only to satisfy their conscience. The Government of India
could deny giving these official secrets documents but the details were
submitted and examined by the full bench.
[23]
Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980).
[24]
Majority opinion of Robert CJ at 32.
[25] Majority opinion of Robert CJ at 35. One may again contrast this with the Rafale
judgement (2018) where the Supreme Court of India held that the “perception
of individuals cannot be the basis of a fishing
and roving enquiry by this Court, especially in such matters.”
[26] Chicago
& Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S.
103, 111 (1948); see also, Regan v.
Wald, 468 U. S. 222, 242–243 (1984). In Regan the Court declined
to conduct an “independent foreign policy analysis.”
[27]
Majority opinion of Robert CJ at 37.
[28]
Korematsu v. United States, 323 U. S. 214 (1944). During war with Japan, the government apprehended
espionage and sabotage. The President issued an executive order, which directed the exclusion of all persons of Japanese
ancestry from a described West Coast military area.
[29]
First dissenting note was by Breyer and Kagan JJ.
[30]
It was propounded in Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor,J.,
concurring). Initially articulated in the mid-1980s, this approach would find
an Establishment Clause violation whenever a reasonable observer would conclude
that government "endorses religion," thus sending "a message to
non-adherents that they are outsiders, not full members of the political
community, and an accompanying message to adherents that they are insiders,
favored members of the political community." See, Jesse H. Choper,
“The Endorsement Test: Its Status and Desirability,” 18 J.L. & Pol.
499 (2002), available at : https://scholarship.law.
berkeley.edu/cgi/ viewcontent.cgi? article = 1295&context=facpubs, (last
visited on July 31, 2018) There is another standard i.e rational standard of review where the
court doesnot inquire the detailed reasons of executive decision. In reasonable
observer review the court examines the elaborate reasons of executive decisions
so as to satisfy a reasonable person. This is stringent standard of review to
evaluate a legal provision.
[31]
Dissenting opinion of Sotomayor J at 1.
[32]
Id. at
3.
[33]
Id. at 22.
[34]
Id. at 18.
[35] Neal
Kumar Katyal, “Trump v. Hawaii: How the Supreme Court
Simultaneously Overturned and Revived Korematsu,
, Yale
Law Journal (2019)
available at :
https://www.yalelawjournal.org/forum/trump-v-hawaii, (last visited on Feb 3,
2018). Neal Kumar Katyal was lead counsel
for the State of Hawaii in Trump
v. Hawaii.
[36]
Trump v. Hawaii 132 Harv. L. Rev.
327 (2018), available at : https://harvardlawreview.org/ 2018 /11/
trump-v-hawaii/, (last visited on Jan 25, 2019).
[37]
249 US 47(1919), it was a unanimous verdict. In Debs
v. United States and Froh Werk v. United States, the Court
again upheld the conviction and the Act.
See, Wallace, Constitutionality of Sedition Laws. Gilbert
v. Minnesota, 254 U.S. 325 (1920); Pierce v. United States,
252 U.S. 239 (1920); Schaefer v. United States, 251 U.S. 466
(1920); Abrams v. United States, 250 U.S. 616 (1919); Debs
v. United States, 249 U.S. 211 (1919); Frohwerk v. United
States, 249 U.S. 204 (1919); Schenck v. United States, 249
U.S. 47 (1919). See, Geoffrey R.
Stone, “Free Speech and National Security”, 84 Ind. L.J. 939 (2009) at 946, available
at: http://chicagounbound.uchicago.edu/
cgi/viewcontent.cgi?article=2975 &context=journal_articles (last visited on
July 02, 2018), hereinafter referred
at Geoffrey R. Stone, Free Speech.
[38]
Available at : https://supreme.justia.com/cases/federal/us/249/47/,
(last visited on July 22, 2018).
[39]
268 US 652 (1925). This case is also known for
“incorporation doctrine” i.e. Bill of Rights is also applicable to State
through fourteenth amendment, available at :
https://www.britannica.com/event/ Gitlow-v-New-York (last visited on July 12,
2018).
[40]
Ibid.
[41]
Observation of the First Amendment scholar Harry Kalven. See, Geoffrey R.
Stone, Free Speech at 945-946. Brandeis, J., dissented in three cases -Gilbert,
254 U.S. at 335; Pierce, 252 U.S. at 253 and Schaefer, 251 U.S.
at 482. Holmes, J., dissented in Abrams,
250 U.S. at 624.
[42]
341 U.S. 494 (1951). The USA
controlled the ideology of communism and the Communist Control Act, 1954 was
passed by the Congress (the US Parliament) to tackle with red menace which
promoted the ideology of violent overthrow of government. The Act is still a
law in 21st century.
[43]
“Smith Act,
formally Alien Registration Act of 1940, U.S.
federal law passed in 1940 that made it a criminal offense to advocate the
violent overthrow of the government or to organise or be a member of any group
or society devoted to such advocacy. The first prosecutions under the Smith Act, of
leaders of the Socialist Workers
Party (SWP), took place in 1941.
After World War II the statute was used against the leadership of
the American Communist
Party (Communist Party of the
United States of America; CPUSA). The convictions of the principal officers of the CPUSA (1949)
were sustained—and the constitutionality of the advocacy provision of the Smith
Act upheld—by the U.S. Supreme Court in Dennis v. United States (1951). In a later case, Yates v. United States (1957), the court offset that ruling somewhat by
adopting a strict reading of the advocacy provision, construing “advocacy” to
mean only urging that includes incitement to unlawful action,” available at
: https:// www.
Britannica .com/ event/Smith-Act (last visited on July 20, 2018).
[44]
Geoffrey R. Stone, Free Speech at 950.
[45]
In various cases, the Court affirmed the exclusion of members of the Communist
Party from the bar, the ballot, and public employment, see Geoffrey R. Stone, Free Speech, supra at 950.
[47]
Clarence
Brandenburg
v. State of Ohio, 395 US 444 (1969).
[48]
561 US 1 (2010). The ratio was divided in 6:3.
[49]
(1) “train members of [the] PKK[Partiya Karkeren
Kurdistan (PKK), or Kurdistan Workers' Party] on how to use
humanitarian and international law to peacefully resolve disputes”; (2) “engage
in political advocacy on behalf of Kurds who live in Turkey”; (3) “teach PKK
members how to petition various representative bodies such as the United
Nations for relief”; and (4) “engage in political advocacy on behalf of Tamils
who live in Sri Lanka.”
[50]
Title 18, United States Code, §§2339B(a)(1), (g)(4); §2339A(b)(1).
[51]
Two articles have criticised the judgement. Trump
v. Hawaii 132 Harv. L. Rev. 327, (2018) ; available
at : https://harvardlawreview.org/ 2018 /11/
trump-v-hawaii/, (last visited on Feb 3, 2019) and Cristina
M. RodrÃguez “Trump v. Hawaii and the Future of Presidential
Power over Immigration,” available at :
https://www.acslaw.org/analysis/acs-supreme-court-review/trump-v-hawaii-and-the-future-of-presidential-power-over immigration, (last visited on Feb 2, 2019).
[52]
Grahame Aldous and John Alder, Applications for Judicial Review, Law and
Practice, writes that “certain areas of governmental activity, national
security being the paradigm, which the courts regard themselves as incompetent
to investigate, beyond an initial decision as to whether the Government's claim
is bona fide. In this kind of nonjusticiable area judicial review is not
entirely excluded, but very limited,” as quoted in Rafale judgement.
[53]
P.J. Fitzgerald, Criminal Law and Punishment 83
(Oxford, 1962).
