Check out my spot on WNYC and PRI’s The Takeaway today regarding the upcoming Supreme Court case, Los Angeles v. Mendez, about which I posted earlier this week:
The case of Los Angeles v. Mendez, scheduled for oral argument this week, asks whether law enforcement officers can be held liable when they reasonably used force on a citizen, but nonetheless unreasonably created the scenario which gave rise to the need to use force in the first place. This case creates an interesting intersection of Fourth Amendment excessive force doctrine, search and seizure jurisprudence, tort law, protection of privacy in the home, and even the right to bear arms, and may present a rare case when conservative legal principles functionally expand police shooting liability.
In Mendez, two Los Angeles Sheriff’s Deputies entered a residential property without a warrant. They then encountered a shack located in the backyard of the residential property, in which Plaintiffs Angel Mendez and his then-girlfriend (now-wife) Jennifer Lynn Garcia were living at the time. Mendez heard the officers searching the backyard, but the defendants did not identify themselves as officers. The officers barged into the shack, unannounced. At this point, Mendez, who happened to be holding a BB gun to ward off rats and other pests in the shack, began to sit up. One of the officers, upon seeing Mendez with a gun, yelled “gun!”, and both officers then fired upon Mendez and Garcia, injuring them.
It is established that the law enforcement officers in question did not use excessive force in shooting Plaintiffs Mendez and Garcia after they saw Mendez holding a firearm (which turned out to be a BB gun) and beginning to sit up. However, the twist lies in the fact that while the officers acted reasonably in shooting the plaintiffs, said officers may have nonetheless violated Plaintiffs’ constitutional rights by acting in a manner which provoked or caused the armed confrontation between themselves and Plaintiffs.
II. EXCESSIVE FORCE 101
Excessive force cases are decided based on whether the force was reasonable, at the time of the shooting, from the perspective of the officer. Graham v. Connor, 490 U.S. 386 (1989). This issue of perspective is critical. Thus, regardless of the civilian’s actual intentions (or even the civilian’s actual conduct), if the officer reasonably perceived that he/she faced imminent risk of deadly harm, then the officer is legally permitted to shoot the civilian in question. Again, the reasonableness of the civilian’s conduct or intentions is irrelevant, as long as the officer reasonably believed that force was necessary.
III. NINTH CIRCUIT PROVOCATION DOCTRINE
At trial, the court found that the officers had not committed excessive force. However, the court did find the officers liable under a “provocation” theory, which has been adopted only in the Ninth Circuit. Under this doctrine, an officer may be held responsible for an otherwise reasonable use of force when the officer intentionally or recklessly provoked the violent confrontation in which the force was used, and the provocation was itself an independent Fourth Amendment violation. The Ninth Circuit upheld the jury’s verdict under its “provocation” doctrine, and also framed the Plaintiffs’ injuries as being reasonably foreseeable based on the initial unreasonable entry into the home:
“Under these principles, the situation in this case, where Mendez was holding a gun when the officers barged into the shack unannounced, was reasonably foreseeable. The deputies are therefore liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.”
Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016)
IV. CONSTITUTIONAL FRAMING
The case presents an interesting issue of framing. The Court has been very reluctant to expand theories of liability in Fourth Amendment police shooting cases and has frequently granted qualified immunity in novel law enforcement excessive force situations, ruling that the unconstitutional nature of the officers’ conduct was not clearly established. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014).
Thus, the idea of adopting a new “provocation” theory in excessive force cases, which exists only in the traditionally-liberal Ninth Circuit, may not seem appealing to the Court. However, even members of the conservative wing of the Supreme Court may be willing to acknowledge that when officers unconstitutionally enter a civilian’s home, those officers are liable for harms proximately caused by that violation. That is where this case gets interesting – although the court may not want to create a “new” theory of liability, it may not have any issue applying the long-established concept of proximate cause to this particular context. In fact, certain conservative principles may form the basis for a ruling for the plaintiff here.
For example, conservative Justices have been especially protective against government intrusion into one’s home. As the late Justice Scalia wrote in Kyllo v. United States, a case barring the police from using thermal imaging to “view” inside one’s home without a warrant, “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” 533 U.S. 27 (2001)(emphasis added). That case produced the idiosyncratic majority of Justices Scalia, Thomas, Ginsburg, Breyer, and Souter (three of whom are still on the bench), and entrenched the Court’s heightened protection of the home in Fourth Amendment jurisprudence.
Further, the conservative justices have been very willing to protect the right to bear arms in one’s home, which was of course what Mendez was doing which caused the officers to shoot him in the first place. In D.C. v. Heller, another Scalia opinion, the Court held with a 5-4 all-conservative majority that the Second Amendment protects the right to own a firearm in one’s home. The Second Amendment critically protects the right the bear arms in “the home, where the need for defense of self, family, and property is most acute.” 554 U.S. 570 (2008). The Court concluded, “[i]n sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment…”
Here, Mendez was possessing a weapon in his own home, which is constitutionally-permissible behavior. As a direct result of his engaging in protected behavior, and not much else on his part, Mendez was shot by police. Thus, if the officers win, this case would essentially punish Mendez for engaging in constitutionally permissible behavior and would let the officers off the hook for committing and unconstitutional search of Mendez’s home. The conservative justices may see this as an opportunity to stealthily strengthen the right to bear arms, and it’s very plausible that they will not throw away their shot.
V. PROXIMATE CAUSE
Lastly, the Supreme Court need not “expand” police liability to find for the plaintiffs, as it can instead view this case as one of proximate cause, as certain circuit courts have done.
It has long been held that causation is a necessary element of a constitutional claim. See Monroe v. Pape, 365 U.S. 167, 187 (1961) (Section 1983 is “read against the background of tort liability that makes a man responsible for the natural consequences of his actions.”). Some circuit courts have taken the next step of analyzing this particular factual scenario – an unreasonable search which leads to an otherwise reasonable use of force – in the framework of proximate cause.
In certiorari briefing before the Supreme Court, Mendez pointed to a decision by Justice Alito when he served as a Judge in the Third Circuit, Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995), which adopted such a framework. In Bodine, a similar situation occurred where law enforcement officers conducted an unconstitutional search of a home which then led to a deadly confrontation. Justice Alito made clear that an officer’s liability for unlawful conduct is to be determined by “basic principles of tort law,” including principles of proximate cause. As a result, police officers who illegally enter a suspect’s home “would not be liable for harm produced by a ‘superseding cause”, but “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” The court held that if the jury were to determine “that the troopers’ entry was unlawful, it will be necessary to determine how much of the injury suffered by Bodine was proximately or legally caused by the illegal entry.” The court also recognized that while the illegal entry and excessive force claims are separate, “[t]he harm proximately caused by these two torts may overlap.” However, critically, then-Judge Alito made clear that liability would “not necessarily include all harm resulting from the otherwise reasonable use of force to carry out the detention.” (emphasis added).
Moreover, the Tenth Circuit has previously applied a proximate cause framework in a similar case in 2016; when an officer shot a plaintiff after unlawfully entering his home, the court stated that “because a reasonable jury could determine that the unlawful entry was the proximate cause of the fatal shooting of [Plaintiff], we need not decide whether [Defendant officer] used excessive force when he confronted [Plaintiff].” Attocknie v. Smith, 798 F.3d 1252 (10th Cir. 2015), cert. denied, 136 S. Ct. 2008 (2016). The Supreme Court denied cert there, meaning that it may in fact be willing to apply the proximate cause framework in cases similar to Mendez.
For what it’s worth, the Tenth Circuit applied this framework in a more recent but much more factually-convoluted case, Pauly v. White, and the Supreme Court summarily reversed it (seemingly on other grounds) earlier this year. Notably, while the plaintiffs cited Pauly in their certiorari briefing, they omitted it in their merits brief. The effect of Pauly on the Mendez case is unclear, however, especially since the Supreme Court previously denied certiorari on the much more straight-forward Attocknie case.
Regardless, the Supreme Court can easily view this claim within the rubric of proximate cause, rather than “inventing” a new theory of liability, and thus the Ninth Circuit’s decision seems less like a rogue decision and more like a reasonable expression of existing constitutional principles.
VI. FINAL THOUGHTS
The Supreme Court could go a lot of ways with this one, from (in no order): 1) outright rejecting the provocation doctrine, 2) adopting the provocation doctrine (still within the realm of possibility depending on Justice Kennedy’s views), 3) applying a proximate cause standard and finding for the plaintiffs, 4) adopting the proximate cause framework but nonetheless finding that Mendez’s conduct was a superseding cause, 5) applying the proximate cause standard but remanding for consideration of whether Mendez’s conduct was a superseding cause, or even 6) adopting either of the above frameworks but granting the officers qualified immunity by finding that the right at issue was not clearly established. It bears mentioning that the court has been very willing to summarily reverse in excessive force cases on qualified immunity grounds, but that it has not done so here.
Thus, while I cannot predict the outcome of this case, we must resist the urge to divide the court along ideological lines. There is simply more here than just another police shooting, and much more to the Ninth Circuit’s ruling than the “liberal overreach” of which it is often accused.
A few weeks ago, I analyzed the original travel ban, explaining the three ways in which it was unconstitutional, as well as what changes would enable a new ban to satisfy existing constitutional standards. Well, three weeks later, the Trump Administration finally got around to signing that new EO, and so I wanted to take the opportunity to compare my analysis with the final product. In sum, while the new ban goes a long way in tailoring itself to the Ninth Circuit’s issues with the original ban, its true raison d’etre might ultimately be its undoing.
In my initial article, I identified three ways in which changes to the ban would could come as close as possible to constitutionally curing it: 1) exempt current Green Card and Visa holders, 2) eliminate the exemption for minority religions, and 3) explain the rationale for the ban and/or tweak the countries on the list. The new EO basically does all of that, or at least tries to, with the third area being the weakest, as I will explain below.
First, the new EO adopts the first two changes entirely. In fact, the new EO goes even further in avoiding due process issues by rolling out the EO’s restrictions over a week or two. In taking the above steps, the administration has basically immunized itself to Due Process challenges, which was the theory on which the Ninth Circuit relied entirely. Moreover, while the specter of a religious-based Equal Protection claim still exists – based on Trump’s comments on the campaign and the ban’s shoddily-stated justifications – a religious discrimination claim is severely undercut by what is now facially-neutral language in the ban. Unfortunately, the religious discrimination claim will likely be a tough sell. I will get to that in a minute.
The one area where the Trump Administration’s actions were puzzling pertained to the third area: explaining the rationale for the ban and tweaking the list of countries subject to the ban. The Administration did include in the EO a list of purported reasons why the ban is apparently necessary, and they did tweak the list by excluding Iraq. But any rational person can tell that they have issues here. After claiming in Ninth Circuit briefing that a preliminary injunction would harm America because we could not risk waiting even a week to implement the ban, the administration then abandoned its appeal and waited three weeks to implement a new ban. Then, of course, there is the minor detail (yes, that is sarcasm) that not a single American has died from a terror attack perpetrated by individuals emigrating from any of the countries listed in the ban.
In fact, by excluding Iraq of all places – one of the two countries that are literally in the word “ISIS” – the Trump Administration has destroyed much of its good faith claim that the ban makes any sense in combating ISIS-backed terrorism. Moreover, now that they have jettisoned their reliance on the “Obama did it” rationale for the list of countries, the question becomes, what is the rationale for each country in this ban? If not Iraq, then why Sudan? Why not Saudi Arabia? These are the questions that courts will presumably be asking the government, and I do not think that they have a logical answer as to why those countries remain in the ban and yet Iraq somehow won the First Impression Rose. Ironically, in “tailoring” the ban by eliminating Iraq, they may have weakened the basis for the ban entirely.
Ultimately, however, the ban is still on strong constitutional footing because the Trump Administration exempted anyone with current ties to America. This, as I explained in my original article, has the effect of lowering the applicable level of constitutional scrutiny. That is the key here.
Non-resident, un-admitted aliens possess no constitutional rights themselves. Kleindienst v. Mandel, 408 U.S. 753 (1972). As I explained, any constitutional challenge would come down to the question of whether the ban rested upon “a facially legitimate and bona fide” reason. Id. If so, then the courts will not look beyond that basis and will instead defer to the government.
Ultimately, those with Equal Protection claims will seize on the “bona fide” language and assert that the travel ban is not bona fide and instead is intended to disfavor Muslim immigrants. In doing so, they would rely on Trump’s Muslim ban comments and the ever-shifting reasons given for this ban. That might be appealing to the Ninth Circuit, and it might even get potential Plaintiffs past a 12(b)(6) motion and into discovery. But it also might not win a preliminary injunction – which requires a “likelihood of success on the merits” – and it certainly will be very tough in the Supreme Court.
In conclusion, the new travel ban is much leaner and really requires any constitutional challenges to be fought on the government’s terms. As I said initially, while there might be nothing that could possibly save the travel ban, the new EO certainly goes a long way.
The Supreme Court heard oral argument last week in Hernandez v. Mesa, a case about the constitutional rights of a Mexican teen, Sergio Hernandez, shot and killed by U.S. border patrol, while the officer stood in America and Hernandez stood just over the Mexican side of the border. There is no doubt that if Hernandez were American or shot on U.S. soil, then he would be afforded constitutional rights and could bring constitutional claims against the officer. But the fact that he was an alien, technically abroad, has led lower courts to find that Hernandez had no constitutional rights when shot, even if the force used was unwarranted, even though the officer stood on U.S. soil, and even though Hernandez stood just feet across the border. On the surface, this presents an interesting and important issue in and of itself. But what makes this case even more interesting are its ramifications extending well beyond just another shooting at the border.
If the government ultimately wins this case, it will likely mean that the Supreme Court fears those ramifications more than it sympathizes with the family of the teen.
El Paso, Texas and Ciudad Juarez, Mexico straddle the Rio Grande river, and in areas where the river has run dry, a concrete channel, or culvert, separates the U.S. and Mexico. Through the center of the culvert runs an invisible border between the two countries. Sergio Hernandez, a 15 year old Mexican citizen, was playing in the culvert with a group of friends, taking turns touching the wall on the U.S. side and hurrying back to the Mexican side. One of the children was apprehended by a border patrol agent named Jesus Mesa. While the remaining boys fled to Mexico, Hernandez hid behind a pillar from an overpassing bridge, having physically crossed the invisible border back into Mexico. Agent Mesa then shot Sergio Hernandez in the face, killing him. The two stood only 60 feet apart at the time. Video of the incident indicates that Hernandez does not appear to be posing any threat when shot and killed, and instead is merely peaking out from the pillar when shot.
Hernandez’s family sued the United States and Agent Mesa. After losing in the lower courts, the family petitioned for certiorari to the Supreme Court on two questions: 1) whether Hernandez’s 4th and 5th Amendment rights were violated, and 2) whether Mesa was entitled to qualified immunity, which provides liability to government officials if their conduct does not violate a “clearly established” constitutional right. In granting cert, the Supreme Court added a third question: whether Hernandez had a right to even sue in the first place, via what is called a Bivens action. Among the issues before the Supreme Court, whether the force used against Hernandez was justified is not one of them. Rather, even assuming that the shooting was unwarranted, does Hernandez have cognizable constitutional rights in the first place?
II. SKIING THE SLIPPERY SLOPE
Among the pantheon of insufferable things said daily in 1L classes across our nation, “slippery slope” ranks pretty high up there. That and “ipso facto.” But this is a quintessential case where the slippery slope (Oh god, kill me) really does lead us to bigger problems than that with which we started.
Sure, when an agent fires a weapon from inside the U.S. and shoots an alien right at the border with no justification, we see inherent injustice in denying rights or remedies to the individual. But where do we draw the line?
What about when a U.S. sniper kills a drug cartel leader (or his innocent wife) 2,000 feet away? Or when a drone operator in New York strikes the family of an al-Qaeda leader in Yemen? Or, even more abstractly, when a member of U.S. Cyber Command remotely accesses and searches a family computer belonging to a suspected Russia-based hacker?
All of those issues involve U.S. government officers taking action against aliens abroad from within the United States, and yet in all of these situations we understand that the Constitution does not and should not apply. Clearly, if the Court were to issue a broad holding in this case, its application could go far beyond border shootings and implicate a litany of global national security concerns.
At oral argument, many of the Justices expressed their apprehension in ruling for the Hernandez family for this exact reason. Justice Kagan began questioning by asking what Hernandez’s proposed constitutional rule was. Chief Justice Roberts explicitly raised the specter of drones in Iraq being piloted from Nevada and appeared concerned that Hernandez’s proposed rule could not be “narrowly confined.” Even Justice Breyer, often cited as the most pragmatic Justice, pointedly questioned Hernandez’s counsel about how the Court’s holding in this case would be applied to other circumstances, and also echoed Chief Justice Roberts’ concerns about this case’s application to drone strikes. Critically, Justice Kennedy appeared to be quite hesitant to extend the right to bring suit against the federal government to aliens abroad. Later, however, during questioning of counsel for Agent Mesa, the four “liberal” members of the Court appeared to be sympathetic to Hernandez’s case and willing to ultimately draw a pragmatic line between this situation and the parade of horribles listed above.
Ultimately, like with many cases, the vote will likely come down to Justice Kennedy. In two prior cases involving the rights of aliens abroad, Boumediene v. Bush, 553 U.S. 723 (2008) and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), Justice Kennedy appeared to take a practical approach to determining whether the Constitution applied. Boumediene asked whether prisoners in Guantanamo Bay could file a writ of habeas corpus to contest their indefinite detention. Justice Kennedy, writing for a 5-4 majority along with the Court’s “liberal” wing, found that practical considerations dictated that the Constitution applied, even though Guantanamo Bay technically was located in Cuba, not the United States. In Verdugo-Urquidez, a Mexican citizen facing trial in the U.S. claimed that his Fourth Amendment rights were violated when the U.S. government searched his properties located in Mexico. The Court ultimately ruled that he did not possess Fourth Amendment rights, with Justice Kennedy issuing a concurring opinion finding that it would be “impracticable and anomalous” to apply the Fourth Amendment in that situation. In both cases, Justice Kennedy endorsed practical tests to determine the constitutional rights of aliens abroad.
III. WHO WILL WIN
Who wins this case ultimately comes down to what the Justices really feel this case is about. I see a handful of different scenarios unfolding.
a. Shutting Pandora’s Box
If the Court sees this case as opening the door to a wide range of constitutional attacks on U.S. conduct abroad, then it is very unlikely to find for Hernandez. The Supreme Court is typically loath to issue broad, sweeping opinions, for the exact reason that presents itself here. Supreme Court opinions go beyond just affirming or reversing the lower courts, and instead include a holding and a rationale which will be extensively reviewed and applied by lower courts in situations much different than the specific facts of this particular case. In the words of Justice Breyer at oral argument in this case, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell, and it is exacerbated here. Unless a majority of the Court can forge a narrow consensus with a rule of limited applicability, then we can expect the Court to avoid finding for Hernandez. That the Court, on its own, added the question of whether Hernandez could even bring suit in the first place may signify that it wishes to give itself an “out” in order to avoid a big holding here. The Court could also simply split 4-4, in which case the government would win but the Court would not even issue an opinion; this would let the Court avoid ruling on these issues altogether.
b. Protecting Law Enforcement
Moreover, the Court could also see this as a qualified immunity case, which also would bode well for the government. This case involves qualified immunity in an excessive force setting, an area in which this Court has become increasing willing to enthusiastically expand in order to protect law enforcement officers. Qualified immunity protects government officials when their conduct did not violate a “clearly established” right. Many times in the last few years, the Court has reversed lower courts (often unanimously) when they have not sufficiently protected law enforcement officers in situations where the law was not conclusive regarding their conduct or the rights at issue. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014). Here, while the force used by Mesa was clearly established to be excessive, the constitutional rights of Hernandez – an alien abroad – are far from established. To find for Hernandez, the Court would seemingly need to find that qualified immunity hinges on whether the conduct of the officer was clearly established to be unlawful, not whether the right of the individual was clearly established. The Court may be extremely reluctant to issue such a holding, which would likely have the effect of narrowing the doctrine of qualified immunity.
c. Punting Like Ray Guy
Alternatively, the Court could simply punt (and yes, I Googled “best punter” to come up with this heading). The government has math on its side, which the Supreme Court can use to avoid the hardest issues for now. Because the Hernandez family lost in the lower court, it needs five votes to win. Further, there are three issues before the Court, and the Hernandez family must win each one in order to win. If the Court rejects just one of these issues (or ties on any of them), then the government wins. The Court has a ton of outs here and could simply choose to leave this issue for another day with a full complement of nine justices. There are just many ways in which the Court might opt to avoid ruling on the big issues here, especially given the likelihood of a 4-4 split with no opinion being issued.
d. Sometimes a Cigar is Just a Cigar
Or, the Court might just handle this case at face value and rule accordingly, albeit with a limited holding that takes care to avoid other implications. This is an extraordinarily sympathetic case, involving an unarmed teen being unjustifiably shot at close range just over an invisible border. Further, the Hernandez’s family has argued that ruling for the government would implement an on/off switch for constitutional rights at the border, stripping Mexican citizens or their families of any civil remedies against the U.S. or its officers, who could then shoot Mexicans with impunity. As will be explained below, if Justice Kennedy lands on a limited holding with narrow applicability, then Hernandez has a great chance of winning.
e. Donald Trump
Similarly, this case could be about reining in Donald Trump’s aggressive stance on Mexico. The Court will be reluctant to issue Donald Trump and his self-described “deportation force” a blank check to incite violent confrontations at the border. The frequency of border shootings in the past decade was raised by Hernandez’ family in their briefs and was even raised in an amicus brief filed by the Mexican government in support of Hernandez. The Court’s cognizance of the president’s agenda and the possibility for unchecked aggression may lead it to limit future executive abuses by providing rights and remedies to Mexicans at the border.
f. Implementing a Practical Approach
Finally, this case may simply be Justice Kennedy’s opportunity to further implement a practical approach to the rights of aliens abroad. Justice Kennedy is the swing vote, and he has led the charge to center the constitutional inquiry for aliens abroad on practical considerations rather than bright line rules. If Justice Kennedy can determine a limiting principle separating this case from drone strikes and the like, then he may be very willing to issue an opinion conclusively adopting a practical standard for applying the Constitution for aliens abroad.
Such an Opinion would presumably center on the “impracticable or anomalous” language adopted by Justice Kennedy in Verdugo-Urquidez. By using the particular facts of this case – the fact that the culvert is jointly maintained by both the U.S. and Mexico; that the incident took place entirely at the border, and an invisible border at that, and; that it simply would not be impracticable to apply the Fourth and Fifth Amendments in border shootings such as this one – the Court could carefully draw the line. As the petitioner argues in his reply brief, there is simply nothing “impracticable or anomalous about ensuring that border guards, in carrying out their law-enforcement duties on U.S. soil, adhere to uniform constraints on the use of deadly force.” The Court, if it applies Justice Kennedy’s framework, could easily adopt this reasoning.
I believe that the two most likely scenarios are either a 4-4 tie or a narrow win – in more ways than one – for Hernandez, but anything from 6-2 for Hernandez to 8-0 for the government seems to be within the realm of possibility. Ultimately, this case has potential as a judicial Rorschach test, with the justices each seeing the core of this case in their own way and ruling accordingly.
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.