In our April 17, 2017 blog post, we explained what is happening with President Trump’s second, revised executive order (Revised Order) banning certain immigrants from entering the United States under various conditions. That Revised Order, which he released on March 6, 2017, replaced the January 26, 2017 executive order that did mostly the same thing by banning entry of certain classes of people from several countries. Iran, Libya, Somalia, Sudan, Syria, and Yemen were those specified in the Revised Order, which excluded Iraq. There were a few other differences as well, as we laid out in our post.
Courts have temporarily blocked execution of the Revised Order, but litigation proceeds. The Ninth Circuit heard oral arguments this week, in the case State of Hawaii, et al. v. Trump, as did the Fourth Circuit, in the case International Refugee Assistance Project v. Trump, last week. Audio files of both are available on C-Span, and YouTube, respectively.
Lawfare, which puts out a blog devoted to “that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions,” did a nice job live-blogging both sets of arguments, which were each two hours long; we relay Lawfare’s recaps here, with our own thoughts mixed in.
In the Ninth Circuit’s proceedings, the plaintiffs, the state of Hawai’i, and an individual, Ismail Elshikh, Ph.D., the Imam of the Muslim Association of Hawai‘i, finally had the chance to face the substance of the matter, not merely deliberate as to whether they were likely to succeed on the merits, as was their job when they asked the Court to temporarily block the Revised Order.
In the Ninth Circuit: State of Hawaii, et al. v. Trump
Lawfare’s argument summary rightly pointed out that the plaintiffs were arguing that the Revised Order exceeds the President’s statutory authority under the Immigration and Nationality Act (INA), and violates the Due Process and Establishment Clauses of the United States Constitution. The block that the Court enacted in March concerned only the Establishment clause claim, which prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof….” This was the same argument that the International Refugee Assistance Project made to the panel in the Fourth Circuit.
In the Ninth Circuit, the judge who granted the plaintiffs’ request for a nationwide preliminary injunction enjoined two sections of the Revised Order in their entirety: Section 2, calling for the “Temporary Suspension Of Entry For Nationals Of Countries Of Particular Concern During Review Period,” and Section 6, calling for a “Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017.”
These sections involve a 120-day suspension on refugee admission, the significantly lower annual refugee cap, and other provisions directing various officials to conduct an internal review of the procedures that should be used in the vetting of foreign nationals from the six targeted countries and refugees.
The Ninth Circuit considered whether the preliminary injunction was too broad, because it also blocked the government from conducting an internal review of its procedures. Plaintiffs’ counsel argued that it was not, because the injunction only precluded examination of procedures used to carry out what counsel referred to as a discriminatory ban on Muslim entry, not all studies.
Another line of questioning, common to both oral arguments, was the scope of the President’s statutory authority, first, to “suspend the entry of all aliens or any class of aliens,” and also to authorize the Secretary of State to “determine the procedures for the processing of immigrant visa applications.” Yet a third statute forbids discrimination based on nationality in the issuance of immigrant visas, so relevant is the interplay between the three.
Plaintiffs’ position was that all of these directives should be construed together, such that the “President’s powers are bounded by Congress’s broader statutory scheme.” The government disputed this, contending that the anti-discrimination provision does not limit the others, nor does it bind the President’s authority.
Pre and post election statements by the President
The question of the role that President Trump’s statements play in determining whether he has a discriminatory intent is quite significant here. As we recognized in our blog last month, when the Ninth Circuit issued its injunction, it considered interviews and media reports in which President Trump, as a candidate, made many statements that, in the court’s view, “betray the Executive Order’s stated secular purpose” in violation of the Constitution.
Counsel in this week’s oral argument looked not only to campaign statements that Candidate Trump made, but also to an utterance he made when he signed his Revised Order, characterizing it as an impermissible religious animus: “we all know what that means.” Combined with the campaign statements, which existed on the President’s official campaign website until the day before last week’s Fourth Circuit oral arguments, Plaintiffs’ counsel reasoned that the President’s words are all fair game as evidence of an unlawful motivation.
The government countered that the statements are ambiguous, and do not clearly convey discriminatory intent. The lawyer declared that the President is entitled to a “presumption of regularity,” meaning the Court is not permitted to assume an illegal motive. Counsel for the plaintiffs disagreed that the President is entitled to no such presumption. Instead, he said that the question is how the objective observer would view President Trump’s statements.
Could the President’s statements taint all future travel bans?
The Court pressed counsel on whether the President could ever issue a travel ban, in light of his past statements with their allegedly discriminatory intent. Plaintiffs’ counsel suggested that if the President disavowed these words, clarifying a neutral intention, a similar travel ban could be permissible. Noteworthy is that the President has not done this, nor does he seem inclined to do so in the future.
Lawfare acknowledged that there was little time in the Ninth Circuit devoted to the question of whether the plaintiffs have the right to bring their case in the first place. This revolves around whether they have concrete injuries that the court is capable of redressing. The blogger noted that prior precedent seems to give both plaintiffs a strong leg on this point, so it is not likely to be a problem.
A piece in The Atlantic guesstimated that the panel “seemed unwilling” to side with the government, “raising the specter of a showdown at the U.S. Supreme Court.”
In the Fourth Circuit: International Refugee Assistance Project v. Trump
Lawfare’s recap of the Fourth Circuit proceeding characterized it as a “sprawling argument focused on various aspects of the constitutional issue,” that is, whether the ban violates the Establishment Clause.
Here, in contrast to the Ninth Circuit’s block, the Fourth imposed its nationwide preliminary injunction stopping enforcement of only Section 2(c) of the executive order. This section calls for, with exceptions, a 90-day suspension on entry by foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen.
The President’s statements
But like in the Ninth Circuit, a key focus of the plaintiff’s argument centered on the extent to which the court can get at the purpose of the Revised Order, meaning, can it look beyond its language by considering the above-mentioned statements by the President, or must the court stick to the “four corners” of the Revised Order?
The Lawfare blogger described the discussion of prior precedent that supports both sides, but the discussion, which invoked a 2015 United States Supreme Court case, made a strong point for going beyond the four corners when there is an affirmative showing of bad faith. Plaintiff’s counsel also highlighted the fact that this is an Establishment Clause case, which demands examination of the President’s purpose, which is reflected in his statements on the campaign trail onward. He cited a line of cases requiring a secular purpose behind governmental action.
On the other hand, the government asserted, the President’s statements were, at most, ambiguous, which requires the above-discussed presumption of regularity. Further, the government suggested that a maximally charitable, rather than hostile, reading was appropriate.
In the conversation on this matter, the session took a turn down a rabbit hole, where the judges challenged counsel in numerous ways, including using hypotheticals to test Plaintiff’s counsel’s theory. Ambiguity and taint, as in the Ninth Circuit, were addressed in the Fourth. Beyond this, “[t]hings g[o]t interesting,” remarked Lawfare, when the government submitted that the Revised Order was nothing more than a variant of an Obama-era policy. More than one judge seemed skeptical.
This procedural, but important question is more critical in this lawsuit because, according to the government, the parties on whose behalf the suit was filed do not have it because they lack an actual, concrete injury.
Plaintiff’s counsel countered that condemnation of the religion, and exclusion from the community, are sufficient to confer standing. There was a legally technical dialogue covering prior case law that leaves resolution of this question unpredictable.
A different article in The Atlantic opined that many judges on the panel “seemed skeptical” of the government’s take on the case, but noted that Plaintiffs’ counsel was challenged as well. Either way, it seems likely that, whether on appeal from the Fourth or Ninth Circuit, the Supreme Court will have the final say.