Much has been written about President Trump’s Executive Order (EO). This piece, however, reacts to the news today that the Trump administration apparently recognizes the flaws of the EO and has decided to craft a new EO designed specifically to withstand constitutional scrutiny. I will be setting out the three biggest problem areas of the original EO, and then will explain how amendments to address these areas would likely yield a constitutionally acceptable result.
To do this, we will need to first address the weakest areas of the current EO, constitutionally speaking. The first is the inclusion of current green card and visa holders. The second is the explicit preference towards religious minorities. The third is a lack of any explicitly-stated connection to or tailoring of the ban to actual security threats to the United States. These aspects, in my opinion and in the opinions of many others, render the EO unconstitutional. However, if those issues are addressed, then the Supreme Court would likely hold that the EO as amended comports with existing constitutional principles.
I personally think that the travel ban is wrong on many levels. But I am putting that aside, with the understanding that our country elected Donald Trump, and that he thus (unfortunately) possesses significant latitude in crafting our immigration policy and making national security determinations. With that understanding, here are the three biggest issues as I see them:
I. Problem Areas
A. Current green card holders and visa holders
By applying this retroactively to visa holders and even green card holders, and by immediately rescinding their rights with no process whatsoever, the government violated the due process rights of these individuals.
As the Ninth Circuit’s Opinion explained (and from which I will quote from pages 20-21), the procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after traveling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). This, on its face, applies to green card holders, current visa holders inside the U.S., and visa holders attempting to re-enter the country.
Those individuals are thus entitled to certain procedural safeguards before the government can rescind their immigration status. This typically requires notice and an opportunity to be heard, although the exact degree of process required for a visa rescission is perhaps an open question. Regardless, the EO provides no process whatsoever, and instead summarily rescinds all applicable green cards and visas. Those affected receive nothing close to an opportunity to be heard, and it is unclear whether they have even received notice that their immigration status has been rescinded, other than simply being detained at an airport and sent back to their country of origin. Clearly, this is unconstitutional as it applies to current green card holders, visa holders inside the US, and visa holders attempting to re-enter the US. Thus, by limiting the EO to only prospective applicants, the EO would avoid due process requirements for those affected by its restrictions.
B. Religious minorities
Those who claim that the EO is not targeted towards Muslims seemingly forget the provision of the EO which allows religiously persecuted individuals to seek a waiver from the ban, but explicitly limits this opportunity to “religious minorities”. As it stands – and standing issues aside – this language runs a significant risk of running afoul of the First Amendment and the Equal Protection clause.
The First Amendment prohibits governmental action that “officially prefer[s] [one religious denomination] over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In Larson, which was cited multiple times in the Ninth Circuit’s Opinion and referenced during Ninth Circuit oral argument by Judge Friedland, the Supreme Court held that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions.
It is not difficult to conjure a scenario where a Muslim and a Christian – both facing the religiously-motivated terrors of ISIL – seek refuge from the United States, with the former being denied a visa and the latter receiving one, based solely on their respective religious beliefs. Indeed, ISIL’s persecution of non-Sunni Muslims is well known and impossible to ignore. Imagine a hypothetical majority-Jewish state where Hasidic Jews militarily overran the country and required strict kashrut observance or death. Surely, any immigration action permitting Christians into the United States but not reform Jews – who, after all, would be part of the religious majority – would be immediately understood as discriminating against Jews and favoring every other religion. The situation with the seven countries subject to the ban – the populations of which ranging from 95%-99% Muslim – is analogous.
While President Trump may never be able to overcome his infamous calls for a Muslim ban (among other deplorable comments), his argument of facial neutrality is certainly undercut by the current language explicitly favoring non-Muslims. Thus, by excising this language, and by instead extending the religious-persecution waiver generally to members of all religious, Trump will make as strong a case as possible that this EO is generally applicable and not actually aimed at Muslims. As noted above, the Court might not buy that argument. However, given the deference shown by Courts to the President on immigration and national security matters (which I will explain below), this will likely be enough.
The Trump administration’s failure to explain why the ban was necessary led to its demise in the Ninth Circuit. While the Court significantly defers to the executive branch on matters of national security, the government must ultimately give some sensical reason why the restrictions are necessary. The Supreme Court has repeatedly rejected the contention that the executive branch possesses a blank check in the spheres of immigration and national security. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001); INS v. Chadha, 462 U.S. 919, 940-41 (1983). The government can present these facts in open court, under seal, or in camera, but ultimately it has to present facts supporting its rationale.
Here, however, the government could not – and often refused to – provide actual evidence why the ban was necessary. For example, as is well-known, while the EO itself cites 9/11 as an impetus for the restrictions, none of the perpetrators of that attack were from the seven countries affected by the ban. Similarly, there is no reason given why the ban applies to absolutely everyone from these countries, from green card holders living in the US for decades, to infant refugees, to elderly visa holders, to dual-nationals. Trump has claimed that he simply took those countries previously named by Congress and President Obama. But that previous instance involved Congress and President Obama listing countries where applicants would then be ineligible for visa waivers and would instead be subject to a screening process. Under that process, those with no plausible connection to terrorists whatsoever (i.e. children, the elderly, etc.) would presumably pass this screening with much greater ease than others. However, here, Trump threw the baby out with the bathwater and simply banned everyone on the list entirely, regardless of any plausible connection to terrorism. Further, he did so without actually explaining why these countries are the ones subject to the ban. Thus, the EO is both over-inclusive and under-inclusive simultaneously.
To fix this, Trump could do a number of things. For one, he could actually find and present evidence of terror threats from these countries. However, it appears that this evidence simply does not exist. Trump could alternatively simply limit the ban to certain countries that plausibly pose a bigger threat to national security than others. This may include adding countries to the list while eliminating others. Alternatively, he could exclude various classes of visas from the ban, for example, permitting those coming to the United States for education or similar programs.
By doing this, Trump would be tailoring the restrictions to the actual threats while allowing others into the country. This would not only help him in his First Amendment/Equal Protection defense, but would also provide the Court with an easy way to maintain its deference to the president on national security matters.
II. What’s left, and is it constitutional?
What would be left after these changes would likely survive constitutional scrutiny. Essentially, this new EO would only apply prospectively and not to those already with connections to the United States, would treat all religions neutrally, and would provide a facially plausible reason for the ban. This would likely pass muster with the Supreme Court.
The key here is the removal of current green card and visa holders from the EO’s restrictions. By tailoring the EO as such, the government would essentially be eliminating those who themselves have constitutional rights, and it would thus be able to defend the ban using lower levels of constitutional scrutiny.
The Supreme Court has repeatedly ruled that non-resident, un-admitted aliens possess no constitutional rights themselves. Kleindienst v. Mandel, 408 U.S. 753 (1972) (“It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.”). Thus, at best, individuals with mere connections to these visa applicants would have standing to sue (and even that is a tenuous proposition). These claims would presumably be made on First Amendment or Due Process grounds. However, these claims would in all likelihood be rejected, because the Court simply reviews these immigration-related claims with extraordinarily low levels of judicial scrutiny, particularly in the area of national security.
In Mandel, supra, the Supreme Court weighed the national security interests of the government against the First Amendment interests of university professors challenging the visa denial of a foreign professor with no prior connection to the United States. In doing so, the Court stated that when a denial of a visa is based “on the basis of a facially legitimate and bona fide reason”, the courts will not look beyond that basis and will instead defer to the government. Id., at 770. In Justice Kennedy’s controlling concurrence in Kerry v. Din, 135 S. Ct. 2128, 2139 (2015), this principle was also applied to the due process context. Justice Kennedy stated that “[t]his reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.” Notably, while Justice Alito joined Justice Kennedy’s concurrence in this case, the three other conservative justices on the bench at the time went even further in their finding for the government, meaning that as long as the Trump Administration presents a facially legitimate and plausible reason for the ban, it will likely gain enough support on the Supreme Court to prevail.
Should the new EO face a constitutional challenge, the government will likely be able to present a facially legitimate and bona fide reason for the EO, based on 1) the religious neutrality in the EO’s language and 2) the specific connection between the security threats and the amended scope of the ban. Given the Court’s extreme deference to the executive branch in the area of national security, the Supreme Court is very likely to accept the government’s rationale for requiring this ban, as it has in past cases such as Mandel and Din.
At the end of the day, President Trump might simply just be too stubborn to truly do what is necessary to trim the EO down to its constitutionally-acceptable core. As the travel ban stands now, I believe that it is plainly unconstitutional. However, unfortunately, by making the three simple changes as explained above, the travel ban would likely survive the Supreme Court.