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.

-Ryan

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.

-Ryan

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.

  

-Ryan

Travel Ban: No Longer in Beta

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.

-Ryan