Brief of Amici Curiae Constitutional Law Scholars in Support of Respondents in Trump V. Hawaii, 17-965

Abstract

The brief, filed on behalf of seven constitutional law scholars in Trump v. Hawaii (the “Travel Ban 3.0” case), explains why the Bill of Rights constrains federal power over immigration no less than other types of federal power. From the summary of the argument of the brief: “The Bill of Rights was added to the Constitution, not just to protect individual rights, but also to impose structural constraints on the federal government. These constraints sharply curb the powers granted in the unamended Constitution.... Thus, Petitioners' claim of nearly unlimited authority over immigration that is immune from judicial review has it backwards. No federal power can override the Bill of Rights. To the contrary, the Bill of Rights limits federal power in every sphere, including immigration. “The Establishment Clause was originally understood as preventing federal regulation of religion in order to preserve state autonomy in this sphere. Prior to the enactment of the Fourteenth Amendment, a State could establish a state religion, favor some religions over others, or adopt a policy of nondiscrimination.... “The authority of the States in the domain of religion has now been curtailed by the Fourteenth Amendment and its application of the Bill of Rights to the States. But the constraints the Establishment Clause imposes on the federal government remain in their original form: The federal government can neither establish a national religion, nor engage in discrimination based on religious animus.... “The [travel ban] Proclamation, motivated by bias against Muslims, violates the Establishment Clause by disfavoring adherents of a particular minority religion. And because the Establishment Clause is a general structural limitation on the power of the federal government, the Proclamation cannot be enforced even against foreign nationals abroad.”