Let’s Talk About the Travel Ban Case

This post originally appeared on a now-defunct website on April 14, 2018.  The decision was announced on June 26, 2018.

On Wednesday, the Supreme Court will hear arguments in Trump v. Hawaii.  People have apparently already started lining up to get in to hear the arguments.

In case you somehow forgot, this is the case about President Trump’s Muslim ban err… travel ban nope… Proclamation No. 9645.  There we go.  Trump v. Hawaii is the last case for which the Supreme Court will hear oral arguments before the Court heads into recess this summer, and you shouldn’t expect a full opinion from the Court until probably the last possible day, which should be late June.

There are a ton of legal issues and questions involved in this case.  Some are more significant to the ultimate outcome of the case than others.  I’ll do my best to break down what I think are the most significant issues and arguments in terms of the impact they could have on the ultimate outcome.  But I’m no expert, so please don’t rely on anything I have to say ever.

How Did We Get Here?

Buckle up and I promise we’ll all get through this one together.  You all remember what this case is about, right?  Like a week after taking office, President Trump issued an Executive Order (EO-1) that temporarily suspended the ability for people from a bunch of “Muslim-majority” countries to obtain visas or even enter the U.S.

After EO-1, chaos ensued, both in the court of public opinion and at our actual borders because President Trump provided no guidance or even notice to those tasked with implementing this order (like, ya know, Immigration Officers with Customs and Border Patrol).  EO-1 was challenged in court, and where it did not hold up so well.  Instead of continuing to try to defend EO-1 in court, President Trump said screw it, let’s just try a different one, so he issued a second Executive Order (EO-2).

EO-2 was… well…  yeah I mean it was basically the same thing as EO-1.  So EO-2 was also challenged in several courts, causing a couple federal courts to enjoin EO-2.  (Which means the court said the government cannot implement/enforce this Executive Order.)

And so EO-2 reached the Supreme Court (kinda) and the Court partially stayed the injunctions against EO-2, (Basically saying hey forget what that lower court said, go ahead and implement the order while we figure out exactly what to do about this) and granted certiorari (Meaning that the Court wanted full briefings on the issues of the case and wanted to hear full arguments from the parties).  Which is all well and good, except that EO-2 was a temporary order.  EO-2 ended up expiring before the Court was able to actually hear arguments, and so the Court dismissed the case as moot.  (Meaning the Court was like well… this isn’t even a thing anymore so there’s no problem anymore so there’s no reason for us to hear about it so BUH BYE.)

A few months later, in September of 2017, President Trump issued yet another Executive Order (EO-3).  Actually, EO-3 is technically a Presidential Proclamation.  Truthfully, I do not know the difference between an Executive Order and a Presidential Proclamation.  There is a difference, I just don’t know what it is, and I’m not sure that the distinction is relevant for this case.  Regardless, Presidential Proclamation No. 9645 has colloquially referred to as EO-3, which is great for me because that’s easy and I like easy.

Anyway, EO-3 was significantly different from EO-1 and EO-2 in terms of structure and content, nonetheless, it was challenged in court on the same basic grounds as EO-1 and EO-2.  Specifically, the State of Hawaii, the Muslim Association of Hawaii, Dr. Elshikh, and two John Doe plaintiffs (collectively referred to as “Hawaii et al.” or just “Hawaii” in this case) challenged EO-3 in the District of Hawaii.

Challenging EO-3, Hawaii won largely favorable judgments in District Court, and again on appeal in the Ninth Circuit Court of Appeals, so the U.S. Government appealed to the Supreme Court, which granted certiorari (or “cert”) again on this new EO-3.

(When the Supreme Court “grants cert” it just means that the Court decided it wants to take on the case… ya know, read the briefs, and hear the arguments and all that so that it can make a final decision on the matter.  The Supreme Court does not have to hear any case that people petition the Court to take, and the Court can decide for itself what cases it wants to take.  But that’s a whooooole other post topic for a later date.  Or, if you’re that interested, just email me and ask me to write a quick post on how/why the Supreme Court takes a case.)

So What’s Actually At Issue Here?

Uhh… a lot, actually.  When the Supreme Court grants cert on a case, it instructs the parties to the case (Hawaii et al. and President Trump/U.S. Government) to submit to the Court, in writing, answers to specific questions.  These questions are called “Questions Presented.”  The parties to the case each provide the Court with their answers in the form of a brief, then, after the Court has had time to dissect the briefs, the parties go before the Court and present their arguments and answer additional questions the Court may have about their answers.  Here, the Court granted cert on four individual and specific questions:

“(1) Whether the respondents’ [Hawaii’s] challenge to the President’s suspension of entry of aliens abroad is justiciable;

(2) whether the proclamation [EO-3] – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;

(3) whether the global injunction [by the lower courts] barring enforcement of the proclamation’s [EO-3’s] entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and

(4) whether the proclamation [EO-3] violates the establishment clause of the Constitution.”

(It’s important to note that although the Court specifically asked the parties to answer the above four questions, Hawaii, in its brief to the Court, enumerated five questions presented.  From my reading and understanding, though, it looks like they just broke up Question 2 above into two separate Questions.  …I don’t know why.  If I figure it out, I’ll update.)

You can read the full brief for the Government here, and the full brief for Hawaii et al. here.  Or,  you can come with me and we can just dip our toes into Questions Presented together, starting with QP-1.

(1) Whether the respondents’ [Hawaii’s] challenge to the President’s suspension of entry of aliens abroad is justiciable.

What’s this mean?  Well, the Court is asking the parties to answer whether Hawaii et al. even has a legal right to challenge EO-3.

So wait… you’re saying the Court is going to hear arguments… about whether the Court should even be hearing arguments?

Yeah, basically.

…but why?

Because the law is weird, man.  The law is weird.

As always, there’s a lot of nuance to this and people who know way more than I do seem to think this first Question Presented (QP-1) is more of a secondary issue.  I’m inclined to agree, and I think it’s likely that Hawaii wins QP-1 on the grounds that the Court can review an Executive Order to determine whether it conflicts with Congressional intent (whether it and whether it violates the constitution.  Basically, if the challenge is that the President didn’t have the power/authority to implement EO-3, the Court has (and should) review the Executive Order.  Onto QP-2.

(2) whether the proclamation [EO-3] – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad.

Government argues EO-3 is lawful for a lot of reasons, but mainly because:

  • Federal law (8 U.S.C. 1182(f)) provides the President with broad powers to suspend entry of aliens based on findings that would not otherwise mandate an alien’s inadmissibility under the Immigration and Nationality Act (INA), and its breadth cannot be overstated since the statute uses the phrase “all aliens or any class of aliens.”
  • Presidents have done this before, like in cases when the aliens themselves may not have been particularly dangerous but because their governments acted in ways that threatened national security, which is exactly the President’s reasoning here.
  • EO-3 does not need to be temporary because 8 U.S.C. 1182(f) authorizes the President to suspend entry “for such period as he shall deem necessary.”
  • 8 U.S.C. 1182(f) allows the President to exclude aliens based on nationality because, again, the statute provides the President can act to exclude “all aliens or any class of aliens,” when the President finds their entry would be contrary to the “interests of the United States.”

Hawaii is arguing EO-3 is unlawful for a lot of reasons, but mainly because:

  • This isn’t a national security thing, this is the President unilaterally enacting new immigration laws and policies, which he can’t do, because the Constitution “entrusts ‘[p]olicies pertaining to the entry of aliens exclusively to Congress.'”
  • EO-3 is unlawful because it is permanent, and 1182(f)’s use of the words “suspend” and “period” means the statute should be read as authorizing temporary action, not permanent action.
  • 1182(f)’s language regarding “interests of the United States” should be read to refer to the “policies of the Act” at issue (here, the INA).  (This is to say, the President can’t just claim I think this is for the good of the country, he must substantiate this action by showing it furthers the policies embodied in our immigration laws.)
  • EO-3 excludes aliens based on nationality, and the Supreme Court has held that nationality is a characteristic “that the immigration laws overwhelmingly deem ‘irrelevant to an alien’s fitness to reside in’ the United States.'”
  • “If the President could suspend the entry of any aliens he found harmful, irrespective of the policies of the INA, he could subvert–indeed, overthrow–virtually the entirety of” the INA’s statutory scheme for exclusion/removal of aliens, and would allow the President to “simply ban ‘all aliens.'”

Got it?  Good.  Onto QP-3.

(3) whether the global injunction [by the lower courts] barring enforcement of the proclamation’s [EO-3’s] entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad.

So… this is one of the issues that some don’t seem to think matters a whole lot and because the Government’s brief addresses this question in less than four pages (out of a 60 page argument section), I’m going to go ahead and agree.  I also don’t really know… anything… about this kind of issue.  And finally, I don’t care, either.  So… moving on to QP-4.

(4) whether the proclamation [EO-3] violates the establishment clause of the Constitution.

So…  even though the Establishment Clause is at issue in this case, I don’t really feel like spending a ton of time on the Supreme Court cases dealing with it.  The Establishment Clause has a pretty long and extremely complex history in the Court.  You can read a little bit about it here.  Or, you can read a lot about it here.  The bottom line is that Hawaii is challenging EO-3 and saying it violates the Constitution as it unconstitutionally disfavors Muslims.

Government arguments:

  • EO-3 should be looked at under the Supreme Court’s decision in Kleindienst v. Mandel, and therefore, EO-3 is constitutional because the President has “a facially legitimate and bon fide reason” for Executive exclusion of aliens.
    • EO-3 is facially legitimate because its purpose is to protect national security and further the national interest of preventing entry of persons about whom the United States lacks sufficient information to assess the risk they pose, and foreign policy by encouraging other nations to improve their practices.
    • EO-3 has a bona fide reason because it relies on a “worldwide, multi-agency review process” and “neutral criteria” against which “all nations are assessed.”
  • Mandel stands for the rule that Courts shouldn’t “look behind” EO-3’s stated rationale and search for pretext.  (You know… like the literally everything President Trump has ever said on TV, and Twitter that could possibly lead any reasonable person to believe his motivation for EO-3 is to ban muslims.)
  • In the domestic context, whether Executive action has an improper religious purpose depends on the “text, legislative history, and implementation…” and the text, history, and implementation all point to religion not even being implicated.
    • The text doesn’t refer to religion at all.
    • Its history includes an extensive review process by numerous agencies and Cabinet officials and rests on a finding of inadequacies in other countries’ information-sharing practices.
    • EO-3 is religiously “neutral” because:
      • EO-3 omits two “Muslim-majority” countries that were in EO-1 and EO-3.
      • EO-3 includes two “non-Muslim-majority” countries absent from previous EOs.
      • EO-3 enumerates the specific risks of each country named.
      • EO-3 does not cover the vast majority of Muslims in the world.

Hawaii argues EO-3 violates the Establishment Clause because:

  • The tests the Government laid out (stated above from Mandel) for determining whether EO-3 violates the Establishment Clause are not the correct tests for this Court to use because Mandel dealt just with the exclusion of one alien, so it doesn’t apply to “constitutional challenge[s] to sweeping Executive policy.”
  • Instead, the appropriate question the Court needs to answer is “whether a reasonable observer would view the Executive as acting with the primary purpose to exclude members of a particular faith.”
    • To answer this question, the Court looks to the text, the operation of the policy, “readily discoverable evidence regarding ‘the historical background of the decision under the challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by’ the decision-maker.”
    • So… again…  the literally everything Trump has ever said shows this to be an attempt to ban Muslims.
  • Even if the Mandel tests did apply, EO-3 fails because under a later Supreme Court case, Kerry v. Din, EO-3 is not afforded the same level of deference if the Court finds “an affirmative showing of bad faith,” which is evident here.  (You know, from the everything that’s ever come out of Trump’s mouth.)

Wasn’t that easy and fun?!

Prediction Time!

Lol jk I have no idea how this one is going to go.  This isn’t quite as easy as saying well there are 5 conservative justices and 4 liberal justices so Trump will win–mostly because of the number of issues at play and how they work off of each other.

If I had to guess one way or another how this case goes, I’m inclined to guess that Trump is going to win this one (unfortunately).  There are a couple reasons.

First, I think that Hawaii’s argument that EO-3 is out of line with the Immigration and Nationality Act is a little flimsy.  The way I’m reading the relevant statutes (for whatever that’s worth), the statutes seems to give the President pretty broad powers to make decisions like this for reasons like this.  I also think that the interpretation of the INA that Hawaii is asking the Court to adopt is asking a lot of the conservative majority.

Second, although conservatives often wave the flag of limited government and separation of powers, it’s not uncommon for conservatives to give a lot of deference to Executive power when it comes to issues of national security, which is what the President invokes here.

Third and finally, I’m just not sure how the Court is going to apply its own Establishment Clause doctrine to EO-3 when EO-3 doesn’t technically have a direct impact on the right of individuals on U.S. soil to practice their religion.  As far as I can tell, the only Establishment Clause cases the Court has heard has dealt with government action (laws, ordinances, etc.) on its own citizens and people, not on laws that only directly affect those not on U.S. soil.  And to add to that, the Court’s history with the Establishment Clause is so convoluted, I would not be surprised if the Court finds some way to just avoid this question all together.  This case doesn’t seem, to me, to be a good “vehicle” for clarifying Supreme Court Establishment Clause precedent.

On the other hand, because this case does present a unique opportunity for the Court to clarify what, if any, impact the Establishment Clause has on immigration laws, then maybe the Court might think this case is a good vehicle to clarify that issue.  Additionally, Hawaii is wise to keep throwing the government’s own statements from previous arguments (like from Hawaii’s brief: “The Government has admitted that—if its view carries the day— this Court would be powerless to intervene even if the President announced a desire to ban Jews and then barred all immigration from Israel the next day in the name of national security.”)  By getting the government to admit things like this, it forces the Justices to think about the effect of this case on future issue, and I can’t help but think that the Justices just are not going to like hearing things like “the President can decide to ban Jews.”

Still…  just from reading the briefs, I don’t feel super great about Hawaii’s chances on this one.

So What’s It All Mean?

Well… it’s hard to say.  Truth be told, I’m currently struggling with what the broader, long term implications of this case could be.  Most cases heard by the Supreme Court are very specific to one tiny little case or issue and the Court’s ruling on that case has little impact on the law moving forward, or the lives of anyone you’ll ever know or meet.  Other cases, like, oh say, Obergefell, have a greater impact on the law and our every day life by making it law that marriage is a “fundamental right.”  I’m just not sure where this one falls.  The Court could opt to write an opinion super narrowly so that their decision can’t really be applied well to future cases, or it could take the opportunity to make a statement about Executive power, or, as discussed above, about the Establishment Clause.  My guess?  I think they make it narrow.  I don’t think they want this case to have a huge effect on the law.  Just a guess.

Closing Words

Okay… so…  this is the part where I try to temper everyone’s passions and the optics of it all and try to put some things in perspective.

I’m conservative, and I believe strongly that a sovereign nation like ours has the right and necessity to define and protect its borders, and, as part of that, the right to exclude some people from entering.  I’m not saying this power should be wielded without reasonable guidelines and I’m not advocating for xenophobic immigration laws.  What I am saying is that one of the most fundamental principles of sovereignty is to be able to say who can and who cannot come into our country.  This is something we’ve been doing for… well… pretty much from the beginning.

With that in mind, I think generally, it is within the authority of Congress to set the criteria for determining who can and who cannot come into our country.  This is what they have done in the INA.  The INA makes it so that former prostitutes, certain criminals, human traffickers, terrorists, communists, WWII Nazis, and even the sick and the poor can be refused entry into the U.S.  That’s the law.  Regardless of what you may think about it, that’s the law we have now.

So when an alien applies for a visa to travel to the U.S., and the U.S. government needs to find out if the alien falls into any of the above criteria, the government needs to do massive background checks, right?  The government needs to find out the alien’s criminal history, the kinds of people the alien associates with, what they spend money on (since supplying terrorist groups with money can render you inadmissible), and also if they’ve been mentally ill and what their economic status is.  Not just that, though.  Because some people apply for visas available only to those with certain skills, the government also needs to check to see if those people have those skills, including checking professional references, licensing, certifications, etc.

And with that all in mind, it is difficult for our government to do any of that when the alien’s government does a crap job of keeping records, or when a nation’s general state of disarray makes it impossible for any of this information to even be gathered, much less shared with our government.

This is all just a long way of me explaining that I think the principle (taken at face value) behind EO-3 is sound.  If our government is unable to make adequate determinations about the backgrounds of visa applicants from a particular country, then, I think it’s at least reasonable, if not necessary, to deny visas to applicants from that country until (1) the alien’s country gets itself together and is able/willing to share the information we need or (2) we figure out a way to get the information we need without the other country’s cooperation.

Now.  That said.  I think Trump clearly has horribly xenophobic intentions to prevent Muslims from entering our country which is crap I can’t believe we’re dealing with in 2018.  However, I’m not sure that he hasn’t found a legal way to do take a step towards doing so.

And the more complicated issue is the issue of Executive power in the name of national security.  What unilateral measures, exactly, can the President take in the name of national security.  And how imminent must the threat be?  It’s a tough question and one that the Supreme Court has grappled with before, but this case isn’t going to make that question any easier.

So there you have it.  Typically, arguments last about an hour.  Something tells me these arguments will be… well…  a little bit longer.  And while usually the Supreme Court doesn’t release the audio for oral arguments until Fridays, rumor has it the audio will be released as soon as it’s available, which could be later Wednesday.

As always:  Contact me and let me know what I got wrong, and let me know if you have any questions, comments, or concerns.