Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
In Progress Mixed Outcome
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On March 29 2017, the District Court for Hawaii granted a preliminary injunction effectively extending a two-week old nationwide temporary restraining order (TRO) on an Executive Order which had placed restrictions on the entry of foreign nationals. The Executive Order was the second such Order issued by U.S. President Donald J. Trump and it replaced an initial executive order that had been restrained by a Washington Court.
The initial Executive Order, issued by the President during his first week in office, placed broad restrictions on individuals traveling to the U.S. from seven Muslim-majority countries. A Washington court placed a TRO on the Order, which was upheld at the Ninth Circuit, on the grounds that the Order was likely unconstitutional and was likely to cause irreparable harm if implemented. President Trump then issued a second Executive Order which, among other things, removed some of the problematic language in the first Order. The Plaintiff State of Hawaii claimed that the Executive Order inflicts constitutional and statutory injuries on its residents, employers and educational institutions while Plaintiff Dr. Elshikh alleged injuries on behalf of himself, members of his family and members of his Mosque.
Converting the TRO into a preliminary injunction, the Court reiterated its earlier findings that the Plaintiffs had met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim; that irreparable injury was likely if the requested relief was not issued; and that the balance of the equities and public interest was in favor of granting the requested relief. The Court further stated that it would not stay its ruling or hold it in abeyance should the Defendants file an appeal of the order.
On 24 September 2017, the President issued Proclamation No. 9645, which relied on the President’s authority accorded by the INA to restrict entry into the United States for aliens whose entry would be “detrimental to the interests of the United States.”The Government then requested an expedited review of the Ninth Circuit’s decision to uphold the preliminary injunction, which the Ninth Circuit upheld on the grounds that the INA did not vest the President with the authority to issue such a Proclamation. It did not decide upon the Constitutionality of the Establishment Clause Claim. The Government then appealed to the Supreme Court of the United States.
After quickly assuming the justiciability of the claims, the Court found that the President’s Executive Order, as modified by Proclamation No. 9645, was a constitutional exercise of the President’s broad discretionary power as accorded to the Executive by Section 1182 of the INA. It also found that the plaintiffs had not demonstrated a sufficient likelihood of success on the merits of an Establishment Clause claim, and therefore, the preliminary injunction could not stand. Accordingly, the Court reversed and remanded the Ninth Circuit’s decision to the lower courts for further proceedings in accordance with its ruling.
On 27 January, 2017, one week after he was sworn into office, U.S. President Donald J. Trump issued an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“the Original Order”). This Order placed a temporary ban on individuals entering the U.S. from seven Muslim-majority countries, subject to certain exceptions, and was immediately the subject of several lawsuits. On 3 February 2017, as a result of one of those lawsuits (Washington v. Trump), the Western District Court of Washington issued a preliminary injunction which prohibited the federal government from enforcing the Original Order nationwide. On 4 February 2017, the Trump administration filed an emergency motion to stay the Washington decision with the Ninth Circuit Court of Appeals, which was denied on 9 February 2017. The Ninth Circuit found that the State of Washington had standing to request the injunction because of the injuries the Original Order would cause to Washington’s public universities—organs of the state—and because the Original Order was “likely” to be found unconstitutional.
On 6 March 2017, President Trump issued a new executive order with the same title, “Protecting the Nation from Foreign Terrorist Entry in the United States” (“the Order”). This Order placed a similar travel ban on individuals from six Muslim-majority countries, rather than seven (Iraq was removed from the list), and allowed more exceptions than the Original Order, for example for Syrian refugees and skilled workers. Although the Government insisted that the wording of the Order was neutral, several lawsuits immediately disputed the constitutionality of its purpose, alleging that it discriminated against travelers on the basis of religion. One of those lawsuits is the present case, Hawaii and Elshikh v. Trump.
In Hawaii v. Trump, the State of Hawaii and Dr. Elshikh petitioned the U.S. Federal Court for the District of Hawaii for a preliminary injunction to prevent the federal government from enforcing the Order nationwide. Dr. Elshikh is the Imam of the Muslim Association of Hawaii and a legal permanent resident of the U.S. He joined a complaint after the Original Order alleging injuries to himself, to his family and to members of his Mosque. The complaint alleged that the Order discriminates in violation of both the Constitution and the Immigration and Nationality Act (“INA”) because it denies Dr. Elshikh and others the right to associate with family members overseas on the basis of their religion and national origin, and requested a preliminary injunction to block enforcement of the Order until the constitutionality of the Order could be determined. The State of Hawaii alleged that it had standing to challenge the Order because, as a result of the travel ban, Hawaii’s public universities would lose talent and revenue. Hawaii also alleged that the Order would cause harm to tourism—Hawaii’s primary industry—and that it would therefore harm state revenue. The original complaint was stayed after the Washington decision and amended after the March 6 Order. The Hawaii District Court granted the amendment on March 8 and issued a decision on March 15 which upheld the TRO and converted it into a preliminary injunction. The District Court of Maryland issued a similar decision and the respective Circuit Courts upheld the preliminary injunctions.
On 24 September 2017, the President issued Proclamation No. 9645, which relied on the President’s authority accorded by the INA to restrict entry into the United States for aliens whose entry would be “detrimental to the interests of the United States.” The President identified eight countries who, according to the President, did not share adequate information about its nationals for an adequate “informed determination” for entry. In early 2018, after consulting with the Secretary of Homeland Security, the President determined that Chad had significantly improved its practices and therefore lifted the travel ban on that country. Plaintiffs accordingly updated their Establishment Clause claims regarding the President’s Executive Order to include the Proclamation, which essentially refined the EO’s application in its directives to an executive agency.
The Government requested an expedited review of the Ninth Circuit’s decision to uphold the preliminary injunction. That decision did not reach the plaintiff’s Establishment Clause claim, finding that, because INA Section 1152 prohibits discrimination “in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”, the preliminary injunction was justified until further review. The Supreme Court granted certiorari and issued the present decision, Trump v. Hawaii, on 26 June 2018.
Chief Justice John Roberts delivered the majority opinion of the US Supreme Court, in which Justices Kennedy, Thomas, Alito, and Gorsuch joined. Justices Kennedy and Thomas filed concurring opinions. Justices Breyer and Sotomayer filed dissenting opinions, Justice Kagan joining in the former and Justice Ginsberg joining in the latter.
There were four issues before the Court. First, whether a Federal had the authority to review the President’s actions, i.e., whether the claims were ‘justiciable’. Second, whether the INA granted the President the authority to issue the Proclamation. Third, whether the injunction issued by the lower court was overbroad. And finally, whether the Proclamation violated the Establishment Clause of the First Amendment to the U.S. Constitution.
The Court spent significant time analyzing only on the latter three claims. After quickly assuming the justiciability of the claims, the Roberts Court turned to the second claim. It found that the President’s Executive Order, as modified by Proclamation No. 9645, was a constitutional exercise of the President’s broad discretionary power as accorded to the Executive by Section 1182 of the INA. Section 1182 accords the President “broad discretion” to suspend entry of non-citizens into the United States. Thus, the Court reasoned that because the President had conducted a “worldwide, multi-agency review” in determining the scope of the Proclamation, and because this review determined that the entry of “certain non-citizens” to the United States might be detrimental to National Security, the Proclamation was a constitutional exercise of the “broad discretion” of the President.
As for the third claim, that the injunction was impermissibly overbroad, the Roberts Court found that, because the President had the authority to issue the Proclamation and because the Proclamation allowed for the issuance of visas if citizens from the barred countries met certain conditions, the Proclamation did not impermissibly discriminate by not issuing visas on the basis of nationality in violation of Section 1152(a)(1)(A) of the INA. The Court seemed to indicate that, because previous Presidents had taken similar action, and because the Proclamation provided exceptions, the Proclamation fell within the discretion of the President under Section 1182, even though it places general bars on applicants from specific countries.
As to the fourth and final claim, the Roberts Court found that the Plaintiffs did not demonstrate the likelihood of success on the merits of their claim that the Proclamation violates the Establishment Clause. The Court applied ‘rational basis’ in reasoning that, on its face, the Proclamation did not impermissibly favor or disfavor any religion because there were many Muslim-majority nations whose citizens were not barred entry into the United States by the Proclamation, and because there were non-Muslim majority nations included in the Proclamation, namely, Venezuela and North Korea. Instead, the Court found that the President could have had “a sufficient national security justification” to issue the Proclamation in accordance with the authority accorded to the office by the INA, and therefore, the likelihood of success on an Establishment Clause claim was not high enough for the Court to uphold the universal injunction against implementing the Proclamation. The Court did not decide upon the actual constitutionality of the Proclamation, but it was unconvinced by evidence from the state of Hawaii, which relied on the language of the original Orders and a long list of anti-Muslim statements made by the President during his 2016 campaign.
The Roberts Court therefore reversed the Ninth Circuit decision and remanded it to the lower courts to decide in accordance with its opinion.
There were two concurring opinions and two dissenting opinions.
Justice Kennedy joined the majority in its reasoning and its conclusions but filed a separate opinion to stress that subsequent proceedings on the Proclamation must accord deference to the Executive branch. Kennedy also stressed that government leaders should speak and act in accordance with the Constitution even if their speech and actions are never reviewed by a federal court.
Justice Thomas joined the majority in its reasoning and its conclusions but filed a separate opinion to take issue with what he called a “trend” in lower federal courts, namely, issuing “nationwide” or “global” injunctions. Thomas believed that the Court should have found that such injunctions overstep the authority of lower courts unless legislation explicitly grants them such authority.
Justice Breyer filed a dissenting opinion, in which Justice Kagan joined, expressing concern that the Government may not be applying the exemptions in the Proclamation as the language of the Proclamation indicates. In light of evidence that the Government’s application of the Proclamation may violate the Constitution, Justice Breyer believed the injunction should have been upheld until issues with application could be resolved.
Justice Sotomayor filed a dissenting opinion, in which Justice Ginsberg joined, taking issue with the standard of review applied by the majority. Sotomayor believed that Supreme Court precedent should be read to require a higher standard of review than ‘rational basis’ in cases such as this, where citizens are affected. Sotomayor also criticized the majority for “ignoring the facts” and “turning a blind eye to the pain and suffering” caused by the Proclamation. Finally, Sotomayor argued that, even if rational basis was the correct standard of review, the President’s statements on the campaign trail—namely, calling for a “total and complete shutdown of Muslims entering the United States”—provided evidence that the Proclamation did not serve a “legitimate government purpose”, and therefore, should have been found unconstitutional.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This has a mixed outcome. It contracts expression in at least one primary way, but potentially expands the expression of political candidates. First, the case contracts expression because, following earlier decisions, it sets a precedent that urges deference to the President in federal courts reviewing the “broad discretion” accorded to the Executive by the INA, even when that discretion potentially treads upon First Amendment rights. Second, the case expands expression because the Court refused to accord a heavy weight to Donald Trump’s statements during his political campaign that he would pursue “a total and complete shutdown of Muslims entering the United States” if he were elected to office. In that way, the decision protects the speech of candidates for office. However, First Amendment speech was not the constitutional claim at issue in this case; the issue was whether the Proclamation had a substantial likelihood of violating the Establishment Clause. The Court set a precedent here that it is not “substantially likely” that the Proclamation advanced or inhibited religion or excessively entangled the government with religion, because the Proclamation was sufficiently likely to be motivated by legitimate national security concerns and sufficiently likely to be targeting those concerns, not religion.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Pending further litigation on whether the Proclamation violates the Establishment Clause, this decision allows the ‘travel ban’ to go into effect. It also sets precedent that encourages federal courts to defer to the Executive in interpreting the “broad discretion” accorded to that office in excluding non-citizens from the United States under the INA.
Let us know if you notice errors or if the case analysis needs revision.