Theocratic Exclusion: SCOTUS Opens the Door to Establishment Clause Limits on Immigration Power but Errantly Refuses to Walk Through It

2018, in Trump v. Hawaii, the Supreme Court held that former President Donald J. Trump’s “travel ban” did not violate the Establishment Clause because national security was a “facially legitimate and bona fide” justification. The Court grappled with how to balance its divided Establishment Clause precedent under the McCreary County v. ACLU of Kentucky reasonable observer test with the plenary sovereign-inherent immigration power precedent under Kleindienst v. Mandel. In relying on the facially legitimate and bona fide standard, the majority wholly placed immigration in the arena of national security review, distinguishing all Establishment Clause precedent as only applying to the domestic context. Nevertheless, for the first time, the Court applied some semblance of review of the immigration power, not considering political question deference. While acknowledging the significance of this review, this Note argues that the majority arbitrarily distinguished all Establishment Clause precedent, ignoring the ramifications that a First-Amendment-void immigration power can create. On the other hand, the dissent’s reliance on the reasonable observer standard remains too flexible and subjective, and thus unpredictable. Instead, Congress should codify into the Immigration and Nationality Act the compelling government interest standard found in the Religious Freedom and Restoration Act of 1993. Doing so would sufficiently protect citizens’ constitutional rights while continuing to acknowledge the importance of and compelling interest in the federal government’s unhindered ability to address national security concerns.