Trump Travel Ban, Part Infinity: Yossarian Edition

I wrote earlier this week about how the Ninth Circuit’s ruling on the travel ban would affect the proceedings in the Supreme Court. When discussing the narrowing of the injunction to permit the White House to conduct an internal review of visa screening procedures, I argued that it would now be incumbent on the Trump Administration to promptly commence such a review or else risk blowing up the facial raison d’être for the ban. I still believe that to be true. However, after reading subsequent filings by the parties in the Supreme Court and commentary regarding same, I have realized that the narrowing of the injunction places the White House in a much bigger pickle than I initially believed.

As background, Trump’s stated reason for the original 90 day travel ban and its successor EO was that the White House needed to conduct a review of visa vetting procedures. In a well-reasoned tweetstorm, the indispensable and increasingly omnipresent Steve Vladeck aptly explained the government’s stated reason for the ban: “the travel/entry ban was not an end unto itself, but a means to help carry out the real goal of the EO: new vetting rules.” (Yes, I just quoted a tweet, but that seems perfectly legitimate given the subject matter. The Ninth Circuit says they’re admissible now.)

While the original ban itself was enjoined by the Western District of Washington before it ever began, the review process was not, and the White House remained free to conduct such a review. Once a new travel ban was announced, the District of Hawaii then implemented an injunction which not only blocked the ban but also blocked the review process from occurring as well, roughly 45 days after the first EO’s review was to initially begin. As of the Ninth Circuit’s ruling on Monday, however, the DOJ is now free to proceed with the review. As noted above, the Trump Administration needs to begin this review or else it proves that it was merely pretext for the ban. Indeed, today the DOJ has indicated that it will now conduct the review because of the Ninth Circuit’s narrowing of the Hawaii injunction.

However, Vladeck pointed out that by conducting the review, the Trump Administration undermines the entire purpose for the ban. If the White House is indeed able to conduct this review process now, then why was the ban ever actually necessary? The whole point was to conduct the process that it is now conducting without such a ban being in place.

This point is compounded by the fact that the DOJ has not asked for expedited argument. This means that the 90-day review period will surely have concluded prior to a decision by the court. At that point, what is the point of the travel ban at all? The ban was to facilitate a review process which will have already concluded by the time the court decides the issue.

Hawaii’s counsel yesterday made a similar point: because more than 90 days have passed since the original EO and nearly 90 days since the second EO, this whole case will be moot by the time it gets to the Supreme Court. While I do not think that this argument holds water especially given the Hawaii stay of the review process, the point is clear: the Supreme Court will be deciding the fate of a travel ban which would have – on its face – already concluded had it been allowed to run its course.

This puts the White House in a Catch-22. If it does not conduct the review, then it risks destroying the stated rationale for the ban. If it does conduct the review and the ninety-day period concludes, then the ban is no longer necessary. The one acceptable middle position would have been to seek expedited argument so that the review would be ongoing at the time of argument, but the DOJ elected not to take this tact.

The DOJ could and likely will argue that while it is conducting its review now, said review will not be fully efficient or effective until a shutdown is implemented. But oral argument may not be until October, nine months after the original ban; can the DOJ credibly argue at that point that its ability to conduct a review which would have taken three months under optimal conditions has been so hamstrung that it couldn’t be completed in nine? I don’t think so.

Vladeck does seem to suggest that the DOJ was simply wrong in commencing the review process, which in turn would mean that the Catch-22 I described above wouldn’t really exist. I disagree. The argument that the White House is conducting a review – albeit a hobbled one – is much stronger than simply doing nothing when it is permitted to act. Conducting the review now, immediately after the Ninth Circuit’s narrowing of the injunction, is the one bit of urgency that the DOJ or White House has expressed during this saga. It makes more sense to argue that it had a national security imperative to begin a flawed review immediately rather than waiting for the Supreme Court to enable an unfettered review many months from now. Regardless, neither way is optimal, and that’s my entire point – the DOJ is now in prime “damned if you do, damned if you don’t” territory.

Finally, this situation is one of the White House and DOJ’s own making. Their stated rationale for the ban was the urgent need to conduct a temporary review of vetting procedures, in the name of national security. That rationale probably doomed the ban from the start, because it lit a ninety-day fuse for the destruction of the ban’s stated usefulness. The White House and DOJ also bungled the rollout, failing to actually conduct such a review in the 45 day window it had, and then repeatedly refusing to take steps to expedite the inevitable path to the Supreme Court. The DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited argument, and then asking in mid-June for a delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.

Ultimately, the White House may still win at the end of the day. But if they do, then it seems likely that such a result was preordained from the start, since neither the White House nor the DOJ has done themselves many favors.


Ninth Circuit Affirms Injunction Blocking Trump Travel Ban 2.0

On Monday, a Ninth Circuit panel mostly upheld the preliminary injunction against the Trump travel ban. Notably, the court did three things which were ostensibly designed with an inevitable Supreme Court showdown in mind: 1) it did not reach the constitutional issues, instead relying entirely on statutory grounds; 2) it struck down the ban without relying on Trump’s campaign statements, and 3) it slightly narrowed the scope of the injunction. These are all important, as will be set forth below.

I. Taking The (Statutory) Road Less Travelled

Much of the buzz about the travel ban has dealt with its constitutionality – whether it violates the Establishment Clause of the First Amendment. However, the travel ban has also been challenged on statutory grounds. While the Fourth Circuit’s ruling addressed only the constitutional issues and did not reach the statutory issues (as did the Ninth Circuit panel in the travel ban 1.0 case), the Ninth Circuit’s ruling this week did just the opposite. It was the first appeals court decision on either travel ban to address only the statutory arguments.

This is important because it lets the Supreme Court do three things that it loves to do: let issues “percolate” in the lower courts before taking them, exercise constitutional avoidance, and avoid sweeping devisions with unwanted or unintended consequences.

A. It’s Time For The Percolator

First, the court loves to let lower courts weigh in on big issues first. For some reason, every Supreme Court analyst and their mother refers to this as lower court “percolation”. Essentially, what lower court “percolation” means is that the Supreme Court does not like taking cases until at least one appeals court decides it first. It is quite likely that the Supreme Court would have wanted the thoughts of the lower courts on the statutory issue, but prior to this week no appeals court had decided either travel ban on statutory grounds. That has now changed, the statutory issue has been percolated, and the Supreme Court is now ready for its morning coffee.

B. Avoidance Like the Plague

Second, the court loves to avoid deciding constitutional issues when it can. Similarly, the court typically seeks to avoid controversial or deeply political issues, which it fears may affect its legitimacy. A ruling on statutory grounds would let the Supreme Court avoid a sweeping constitutional ruling and also partially mitigate the inevitable political fallout from its decision. Thus, the Ninth Circuit has provided the Supreme Court with a roadmap to strike down the travel ban while doing so on narrow, more palatable terms.

C. “We Write Some Words…”

Relatedly, the Supreme Court also tends to avoid issuing sweeping opinions with unforeseen or unwanted ramifications beyond the facts at hand. As Justice Breyer stated during oral argument in another case this year, “[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 – that its rationale will be applied to circumstances well beyond just the facts of the particular case being decided.

A broad ruling on the constitutional issue would then apply to many other contexts, from subsequent presidents’ immigration decisions to equal protection claims generally. Trump’s presidency, obviously, is quite different than most presidencies; the Supreme Court will not want its opinion here to hamstring future presidents in engaging in run-of-the-mill immigration decisions or national security determinations. Essentially, the trick is to strike down the travel ban (if it is so inclined), while limiting the applicability of this ruling to different contexts. That is easier said than done.

II. Trump’s Campaign Statements

The issue of unwanted consequences also arises when discussing Trump’s campaign statements. Unlike the Fourth Circuit, the Ninth Circuit did not rely on Trump’s campaign statements in striking down the travel ban. There is a very real concern that the court’s reliance on Trump’s campaign statements will open the doors to using campaign statements against public officials in all sorts of litigation pertaining to government decision-making. The Supreme Court will be loathe to weaponize campaign statements by political candidates, and it will avoid using Trump’s campaign statements entirely if it can. To that end, the Ninth Circuit omitted such references. Again, this signals to the Supreme Court that it can strike down the ban while staying out of the thorniest part of the thicket.

III. Narrowing the Injunction

Lastly, the Ninth Circuit narrowed the scope of the lower court’s injunction, in that it now permits the White House to conduct an internal review of visa vetting procedures. This review served as the facial reason for the ban, which was to last 90 days (and 120 days for the Syrian refugee program) while the review was conducted.

Today, the clock begins ticking anew. At this point, there is no evidence that such a review ever began in the first place, but the government may have gotten lucky when it was barred from doing so by the District of Hawaii. Now, that excuse melts away, and it will be incumbent on the government to begin that vetting review in earnest. In the Supreme Court, the plaintiffs will certainly argue that if the ban was really about the review process – and not just pretext for banning Muslims – then the review would have begun immediately and would already be concluded. If there is little or no evidence that such a review has taken place at the time of Supreme Court briefing or oral argument, then the government’s stated rationale for the ban will be destroyed.

This aspect of the ruling is also important because keeping the injunction as-is would have certainly given the Supreme Court a good reason to grant certiorari. Barring the President from internally reviewing visa vetting procedures – which does not adversely affect anyone in and of itself – was something that didn’t make much sense. Although the Supreme Court is likely going to grant cert anyway, there is now one fewer reason to do so.


Anything You Tweet Can and Will Be Used Against You In a Court of Law: POTUS TRAVEL BAN EDITION

A few days ago, the DOJ filed its cert petition and petition for stay in the travel ban case. When the petitions were filed, the general consensus seemed to be that the cert petition would certainly be granted and that the petition for stay had a decent (albeit probably unlikely) shot.

And then Trump tweeted.

Trump’s tweets from today were as follows:

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!

The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.

The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!

In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!

That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!

To understand why today’s tweets were so damaging, we must look to how they affect the biggest sticking points for the respondents. These are (or were): 1) whether or not campaign statements can be used against Trump, and 2) whether the government’s animus from the original ban stains all subsequent versions of it. These two issues created two large fault lines among the judges in the 4th and 9th Circuits at oral argument and in their opinions.

Essentially, as I explained in my initial post, the case likely comes down to a test set forth by the Supreme Court decades ago in a case called Kleindienst v. Mandel and recently reiterated in a  very recent concurring opinion by swing vote Justice Anthony Kennedy in Kerry v. Din. That test requires that government’s immigration decisions be upheld as long as the government can present a “a facially legitimate and bona fide” reason for its decision. There is mostly no question that the travel ban is facially legitimate. The issue then comes to whether the travel ban was done in good faith (bona fide) or out of a bad faith religious animus. That is where Trump’s tweets come in.

To that end, and as I explained above, the dissenting judges in the circuit courts hit hardest on the following points: 1) Trump’s campaign statements should not count, and his actual post-oath-of-office record was not blatantly anti-Muslim, and 2) under the state’s logic, it once bias infects one version of an executive order, there is nothing that an administration could ever do to cure that bias, no matter how objectively legitimate the content of an amended EO. These are two good points, and they force the respondents to attack the EO in its current incarnation and using only Trump’s statements as president. As one of the 4th Circuit dissenting opinions stated, “The Supreme Court has repeatedly warned against judicial psychoanalysis of a drafter’s heart of hearts.” Without the campaign statements, and given the typical levels of executive deference in these contexts, it was a bit difficult to actually pin any of Trump’s statements that specifically and explicitly imbued an anti-muslim bias into the amended travel ban. Rather, the dissenters argued, the court was simply psychoanalyzing Trump’s heart of hearts, and this was improper.

But now those points are gone. Trump’s tweets exhibit his bias as president. Moreover, he makes it clear that he still maintains the bias from the first ban, which he obviously prefers and which was apparently jettisoned by the DOJ, not by Trump himself. Trump still holds the same mindset from the original ban and still wishes to accomplish the same ends. There is no longer a viable argument by the DOJ that the new ban was issued in good faith or that it represented Trump turning a corner. No, it’s clear that Trump signed the new EO kicking and screaming, and that both of the bans were motivated by a politically incorrect intent to ban people from Muslim countries. In other words, this completely undercuts the two best arguments made by the DOJ and the dissenting circuit judges.

Lastly, Trump’s tweets are so damaging because they make him seem dangerously unhinged. They not only threaten the legitimacy of the executive branch, but also that of the Supreme Court if it fails to check Trump’s powers. Although the courts normally grant a high level of deference to the president in the national security and immigration contexts, Trump’s behavior places his presidency – and, in turn, the court’s role in checking its power – in unchartered territory. As Lawfare’s Benjamin Wittes and (today) Jack Goldsmith have stated, Trump no longer enjoys the “presumption of normalcy”, and this certainly applies to the courts. Thus, the Supreme Court may be willing to intercede when it normally would be loathe to do so.

Ultimately, Chief Justice Roberts’ Rules of Order go out the window when faced with the Mad King screaming for wildfire.



Hernandez v. Mesa: Come for the Mexican border shootings, stay for the drone warfare and cyber attacks.

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?


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.


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.