Few, if any, U.S. presidents have targeted concerns over immigrants as much as President Donald J. Trump. During his campaigns for president, Trump associated such immigrants with terrorism and other violent crimes.
After campaigning on this issue, in September 2017 Trump issued a number of executive orders targeting largely Muslim countries. When challenged, courts issued temporary injunctions on the orders before Trump issued Proclamation No. 9645 announcing plans for better vetting procedures for immigrants. After a 50-day period, the government concluded that eight countries — Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela and Yemen — insufficiently vetted potential U.S. immigrants, although it provided exceptions for immigrants from Iraq, which was cooperating with the U.S., and Somalia, which had engaged in information sharing about immigrants.
Hawaii, Muslim association challenge Trump's immigration vetting
The state of Hawaii, individuals with foreign relatives who wanted to immigrate, and the Muslim Association of Hawaii challenged this proclamation on the basis that it violated the Immigration and Nationality Act and that its focus on Muslim nations violated the establishment and free exercise clauses of the First Amendment. A U.S. district court issued a preliminary injunction that the 9th U.S. Circuit Court of Appeals upheld before the case reached the U.S. Supreme Court.
Ultimately, the Supreme Court’s decision upholding the proclamation rested on a broad view of presidential powers that focused on the actual words of the document rather than on the possible anti-Muslim animus behind it.
Supreme Court upholds Trump's enhanced immigration vetting
Chief Justice John Roberts delivered the opinion of the narrow 5-4 majority in this case. He observed that the Immigration and Nationality Act granted authority to the president to restrict the entry of immigrants when the president found that their entry “would be detrimental to the interests of the United States.” Roberts believed that the act “exudes deference to the President in every clause.” He further noted that the president’s latest proclamation “thoroughly describes the process, agency evaluations, and recommendations” and was “more detailed than any prior order the President had issued” under the law. Roberts viewed the president’s proclamation as a supplement to, rather than a supplanting of, the law that had been passed by Congress. Roberts further thought that Trump’s actions were in line with earlier measures taken by presidents Jimmy Carter and Ronald Reagan.
Plaintiffs argue the law reflected 'religious animus' toward Muslims
Turning to the First Amendment issue, Roberts acknowledged that the plaintiffs had standing but denied that Trump’s proclamation violated the constitution. The plaintiffs had argued that the law reflected “religious animus” against Muslims, argued that the president’s stated concerns over national security were simply “pretexts for discrimination against Muslims,” and quoted some of Trump’s statements on the campaign trail that supported this view.
Although plaintiffs argued that “this President’s words strike at fundamental standards of respect and tolerance in violation of our constitutional tradition,” Roberts believed that “the issue before us is not whether to denounce these statements, but “the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
Distinguishing this case from establishment clause cases involving religious displays or school prayer, Roberts observed that this case involved “a national security directive regulating the entry of aliens abroad.” The law itself was “facially neutral toward religion.”
Roberts relied heavily on the Court’s decision in Kleindienst v. Mandel (1972), in which it had upheld the exclusion of a Marxist foreign journalist from an academic meeting and had focused on “whether the Executive gave a ‘facially legitimate and bona fide’ reason for its action.” The chief justice cited the need for respecting separation of powers in national security.
In the case at hand, Roberts applied “rational basis review,” asking “whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes.”
Roberts noted that the President’s proclamation said “nothing about religion.” Moreover, the countries on the proscribed list contained only 8% of the world’s Muslim population and was the culmination of “a worldwide review process undertaken by multiple Cabinet officials and their agencies.” Moreover, some Muslim countries had since been removed from the list, and the president had included exceptions “for various categories of foreign nationals.” The Court accordingly struck down the preliminary injunctions against the proclamation.
Concurring Opinions
In a brief concurring opinion, Justice Anthony Kennedy observed that “There are numerous instances in which statements and actions of Government officials are not subject to judicial scrutiny or intervention.” He lauded the establishment and free exercise clauses for upholding “freedom of belief and expression,” and said, “It is an urgent necessity that official adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs.”
In a separate concurring opinion, Justice Clarence Thomas noted that the president’s actions were “directed to aliens abroad,” and that the “proffered evidence of anti-Muslim discrimination is unpersuasive.” His main concern, however, was what he considered to be the overreach of lower courts in issuing “universal” or “nationwide” injunctions, an issue on which he later triumphed when the Court limited such actions in Trump v. CASA (2025), which dealt with Trump’s policies on birthright citizenship.
Dissenting Opinions
Justice Stephen Breyer issued a dissenting opinion, joined by Justice Elena Kagan, in which he argued that the administration’s failure to apply the exemption and waiver requirements it had developed indicated that the proclamation was motivated by the animus against Muslims that Trump had expressed. He observed that in the first two months of the proclamation, the administration had approved only two waivers from among 6,555 eligible applicants. This suggested that the waivers were mere “window dressing.”
Justice Sonia Sotomayor authored a longer dissent, joined by Justice Ruth Bader Ginsburg. Noting that “The United States of America is a Nation built upon the promise of religious liberty,” the “repackaging” of a policy originally announced as a “total and complete shutdown of Muslims entering the United States” does little to cleanse the law of its anti-Muslim bias.
Sotomayor believed the president’s proclamation “runs afoul of the Establishment Clause’s guarantee of religious neutrality,” which she tied to numerous other establishment clause cases. She quoted decisions indicating that “the Government cannot favor or disfavor one religion over another,” that “forbids an official purpose to disapprove of a particular religion,” that treats members of other religions as “outsiders,” or that violate the principle of “denominational neutrality.”
She further thought that the test to apply was that of how a “reasonable observer” would interpret an action. Quoting numerous anti-Muslim statements by the president, Sotomayor believed that “a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith,” and she likened the presidential proclamation that had led to the incarceration of Japanese-Americans during World War II, and which the Court had approved in Korematsu v. United States (1944), but which the majority had repudiated in this case.
Sotomayor further observed that the Court typically applied heightened (rather than mere rational-basis) scrutiny to establishment clause cases, but she did not think that the proclamation at issue could survive even rational-basis review. She observed that the multiagency review that the president had cited as the basis for his proclamation “was a mere 17 pages,’ and characterized the waiver program as “nothing more than a sham.”
Sotomayor further pointed to the disjunction between the Court’s decision in this case and its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) striking down a Colorado law mandating service by a custom cake shop for a gay wedding on the basis that its supporters had demonstrated an animus against religion by their failure to uphold “religious neutrality and tolerance.” Although she appreciated the Court’s renunciation of Korematsu, she believed that this did not “make the majority’s decision here acceptable or right.”
Trump in second term continues rhetoric again immigrants
During his second consecutive term, Trump has continued his rhetoric against immigrants and visible raids against undocumented noncitizens in the United States by Immigration and Customs Enforcement agents. He has also sought to deport individuals within the United States who have criticized Israel’s policies in the wake of the Hamas terrorist attacks on Oct. 7, 2023 and to clamp down on colleges and universities that he thinks have not done enough to combat anti-Semitism on their campuses.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.