//  7/13/17  //  In-Depth Analysis

The last week included some rapidly evolving developments in the entry ban litigation. On the last day of October Term 2016, the Supreme Court limited the injunctions against the entry ban order so that the entry ban, the suspension of the refugee program, and the refugee cap could be applied to “foreign nationals abroad who have no connection to the United States at all” and “foreign national[s] who lack[] any connection to this country.”  But the Supreme Court opted to keep the injunctions against the entry ban, the suspension of the refugee program, and the refugee cap in place, at least for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” For persons claiming a “bona fide relationship with a person … in the United States,” the Court explained, “a close familial relationship is required.”

The administration then declared how it would implement the injunction:

Close family” is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half.  This includes step relationships.  “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.

The administration later reversed positions to clarify that fiancés are indeed considered close familial relationships. But it stuck with the rather dubious position that the relationships between grandparents and grandchildren are not considered close familial relationships. (It also maintained, and still maintains, that formal assurances from a resettlement agency do not qualify as a “bona fide relationship” with an entity in the United States.)

The administration’s positions were immediately met with widespread criticism from commentators who had thought seriously about it. (For criticisms of the “close familial relationship” interpretation, there are several posts by, lots and lots of people that have examined it. For criticisms of the interpretation about resettlement agencies, there are several posts, here and here.)

Perhaps unsurprisingly, Hawaii chose to go to court to challenge the administration’s position. Hawaii filed in the district court what it styled a “motion to clarify” the scope of the remaining injunctions. The district court denied the motion on the ground that “the clarification … that the parties seek should be more appropriately sought in the Supreme Court.” Hawaii then filed an “emergency motion” for an “injunction pending appeal” in the Ninth Circuit. The 9th Circuit panel that previously had the case held that it “lack[ed] jurisdiction to address [the] appeal of the district court’s order denying the motion to clarify the scope of the injunction.” As the panel explained, the court of appeals only has jurisdiction to review “final judgments and a limited set of interlocutory orders,” and the district court’s denial of a motion to clarify isn’t either of those things.

In the wake of those decisions, several commentators explained the decisions as some combination of: (a) a vindication for the administration; (b) an indication that lower courts had “gotten the message from the Supreme Court” (the message being that the courts need to defer to the executive branch); (c) relatedly, an indication that the lower courts that had enjoined the entry ban (and the suspension of the refugee program and the refugee cap) were wrong to do so; and (d) an indication that the lower had “gotten the message” of (c)—i.e., that they understood their error on the merits of the underlying challenges to the entry ban and the other provisions.

I’m not really sure to begin. I think (b) is right, but only in the limited way that Jack Goldsmith used it—that the Supreme Court’s order had attempted to “turn down the temperature” with respect to tone (as opposed to substance). The Hawaii district court and the court of appeals decision certainly did that. But that is not particularly surprising—the only relevant topics of discussion in those decisions (and the only discussion topics contained in them) were the proper form and the proper forum for Hawaii’s motion. The decisions addressed whether Hawaii asked for the proper remedy (a clarifying order versus injunction) in the proper court (Supreme Court or district court).

That’s hardly the stuff of, say, the merits of a constitutional claim that alleges that the President’s order was driven by a desire to disfavor Muslims. And I’d expect that the summary of the pertinent facts in the two contexts would be different as well. Indeed, part of how the Supreme Court was able to “turn down the temperature” in tone is that the Supreme Court, unlike the other courts, didn’t actually say anything explicit about the merits of the underlying challenges aside from allowing the injunctions against the order to remain in significant ways. (An aside: I don’t think it’s fair to say that the Ninth Circuit decision used a tone that’s especially notable; it had a lot of statutory analysis, and admittedly one citation to Korematsu. But have you read a Supreme Court opinion lately? They’re full of appeals to big picture principles and references to canonical cases (or anti-canonical ones, as the case may be).)  

The claims in (c) and (d), by contrast, are bizarre, as is the claim in (a).

Four thoughts:

(1)    The decisions aren’t about the merits of the underlying challenges to the entry ban, or even about the merits of the government’s interpretation of the Supreme Court’s injunction (or the challenge to it). The decisions address what should be filed and where (and the answer, it turns out, was not a motion to clarify in the district court, or an appeal from that decision to the court of appeals).

(2)    If we’re offering self-serving interpretations of the proceedings to clarify the scope of the Supreme Court’s injunction (or enjoin the government’s implementation of it), here’s one:

The district court and the court of appeals’ orders in the “motion to clarify” proceedings were reasonable in tone and substance. The courts engaged in legal analysis and applied law to the facts of the case, which means they have been doing so all along. See, I win under this interpretation of the orders!

(I’m not actually urging this interpretation of the orders; see below. But the point is that I don’t really have any more or any less evidence for that interpretation than what’s been offered for interpreting the decisions in the clarifying proceedings to mean “see the lower courts were completely lawless in the earlier rounds of the entry ban litigation!”)

(3)    I find the claim in part (c) (which is also implicitly embodied in (d)) particularly odd. The claim in (c)/(d) is that the government has the better position on the underlying legality of the executive order; that the Supreme Court’s modification of the injunctions reflects that; and that lower courts have received that message. I will put to one side the fact that the Supreme Court’s modification of the injunctions did not suggest that the executive order and entry ban are lawful; far from it, as Marty Lederman has explained (and others, including Steve Vladeck, have as well).

For now, I’m more interested in the conflation between what the Supreme Court says/does in a case, and what the “right” outcome in that case is. There’s some conceptual space between a court issuing a decision, and the decision being correct. Many of the commentators who seized on the Supreme Court order as a vindication for the government’s position should know that—they have roundly criticized and disagreed with prior Supreme Court decisions, which they claim are wrongly decided. So even assuming that the Supreme Court had said “the government is correct and the order is lawful,” it wouldn’t follow that that decision would be correct—either as a reflection of what the law was before the Court issued the decision; as a reflection of the relative strength of the legal arguments on both sides; or as a reflection of the morality (or lack thereof) of the order.

I won’t invoke Korematsu or Plessy as examples here, since apparently we’re not allowed to do that in legal argument (similar to how we’re not supposed to say that people may die without Medicaid in health care debates). So I’ll use the government’s interpretation of the scope of the Supreme Court’s injunctions against the entry ban, suspension of the refugee program, and refugee cap. In the event that a court (any court) says that the government’s interpretation of the injunction is right, that wouldn’t mean the government’s interpretation is right. I’m confident it would not be. The arguments as to the proper interpretation of the injunction have been recited a billion times, but just so the point is clear:

The Supreme Court limited the injunctions so that the order could be applied to “foreign nationals abroad who have no connection to the United States at all.”  But the Supreme Court opted to keep the injunctions as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” which required “a close familial relationship” for personal relationships. And the Supreme Court said that mothers-in-law “clearly” count. The administration’s position is that grandmothers do not.

That’s absurd for many different reasons, as Marty, Amir Ali, Ryan Goodman/Adam Cox, Ilya Somin, Peter Marguiles, and others have explained. The administration’s defense is that the Supreme Court didn’t have “grandparents” “in mind” when it said “close familial relationships.” That’s pure supposition. It doesn’t account for the fact that some members of the Court do have close family relationships with their grandchildren; the Supreme Court’s prior description of the relationships between grandparents and grandchildren; the context of the order (which applies to refugees, whose very situation may result in the displacement of other family relationships); the Court’s statement that mothers in law are “clearly” close family relationships; and any number of other things.

The administration’s other defense of its interpretation of the injunctions is that other provisions of immigration law distinguish between grandparents and say, siblings. But as Marty, Ryan/Adam, and Ilya have explained: (1) there’s no statutory definition of “family relationships” that tracks the government’s definition as to the entry ban injunctions; (2) those other provisions haven’t been held invalid by several courts; (3) the provisions offer definitions that apply in different contexts that may suit the government’s definition more than this context does (including that this order addresses refugees); and (4) the idea that grandmothers pose a unique national security risk compared to say mothers in law doesn’t pass the smell test.

So given all that (and I’ve got more to add, but this post is getting long!), if a court ultimately sides with the government’s interpretation, I’m still good with the one I happen to believe. My disagreement with such a decision would not involve me imputing some lawless motive to whatever court signed off on the government’s interpretation. But I would still think that my interpretation of the injunction (not “mine,” really, so much as the Supreme Court’s, as reflected in the Supreme Court opinion delineating the injunction) was the better one.   There are better and worse arguments, and part of being a lawyer is recognizing them, even when courts don’t. See, e.g., the commerce clause reasoning of 5 Justices in NFIB v. Sebelius. Is it so difficult to imagine a decision being wrongly decided?

(4)    In my very first Take Care post (since we’re apparently using the entry-ban-injunction proceedings to do some self-congratulatory navel gazing), I offered some thoughts about what to expect from the federal courts in the Trump administration. I wrote the day after the Hawaii decision enjoining various provisions of the current order, but I cautioned that the federal courts would not be an adequate mechanism to check the Trump administration when it engaged in horrifying, illegal, and/or horrifying illegal conduct. Some of the reasons I alluded to are equally plausible explanations for the federal courts “falling in line,” if they were to do so, than are explanations that posit that the federal courts have realized the folly of their ways, the correctness of the government’s position about the proper scope of presidential power, and/or the legality of the challenged order.

The “lower” federal courts are just that—inferior courts (that’s how the Constitution describes them). Their job is to apply and interpret Supreme Court precedent; they’re not supposed to disobey the Court. Trump nominated a Justice to the Supreme Court who happens to have a very capacious understanding of executive power (in all things but administrative agencies’ interpretations of federal law). Three other Justices on the Supreme Court share something of that view (see the dissents in Boumediene v. Bush, or Justice Thomas’s opinion in Hamdi v. Rumsfeld, in which he stated that he believes the Constitution gives the President the power to detain American citizens without trial). When the Supreme Court spoke about the entry ban, it said nothing explicit about the merits, and issued a compromise decision that allowed both sides to claim something of a win.  Tthree Justices also indicated they would allow the administration to do whatever it wanted with the entry ban and the other provisions of the order.

Whether or not the majority’s decision is “right” (on the law, as an outcome, or on some other metric), once there’s some Supreme Court guidance, most federal courts will follow that guidance, parse it, and try to figure out how it tells them to decide related cases. Most federal courts don’t like being reversed. Their professional reputation (and success, at least defined in some ways) depends on not being reversed. It doesn’t mean that the courts are now coalescing around the idea that a particular position is right; it’s not even evidence that “many minds” think that a particular position is right.

Rather, the federal courts are just trying to figure out what a Supreme Court decision in the case/a related case suggests the Supreme Court would do. And from the June 26 order, we know that the administration has the strong support of three Justices. We know less about the six other Justices’ commitments. That probably affects what the lower courts will do.  But the Supreme Court’s decision (or the decisions of particular Justices) could very well be “wrong,” and with it the lower court opinions predictively applying it.

(I happen to think the Supreme Court’s decision to preserve a good deal of the injunctions does not indicate support for the government’s position, at least from the Justices who were not in dissent. I also think that the Supreme Court’s order modifying the scope of the injunctions is clear enough to rule out the government’s interpretation. My point here is merely to sound a cautionary note about what to expect from the federal courts, particularly once the Supreme Court starts weighing in.) 

An analogy to the press corps may help. The press corps has been widely panned for acceding to the administration’s demands not to videotape press conferences. “That’s wrong,” the criticism goes; “it would be easy” to just turn the cameras on, the criticism continues. But the press’s relationship with and access to the administration leads them to accede to the administration’s demands.

Federal courts have a similar relationship with the Supreme Court.  They will do the same with the directives and demands of a Supreme Court that issues wrongly decided cases, including cases that may strike many of us (strongly, even) as both legally wrong and immoral. Part of the reason for that is the nature of federal courts and their relationship to the Supreme Court. To some degree that should be expected, although I think it undercuts another function the lower federal courts have, which is signaling the perception of the arguments in particular cases to the Justices. (Think back to when Judge Silberman and Judge Sutton wrote opinions rejecting the challengers' arguments to the constitutionality of the mandate; their doing so likely affected peoples' perception of how settled the law was in favor of the government, and the problems with the challengers' arguments.)  But it's still likely to come as a disappointment to those of us who are searching for some way to limit the unlawful damage the current administration seems intent on doing.

Challenging the 'Travel Ban' in the Supreme Court

9/19/17  //  In-Depth Analysis

Will the President’s own words mean nothing to the Court, even as they mean everything to millions affected by his order?

Joshua Matz


Versus Trump: Keeping the DREAM Alive

9/14/17  //  Commentary

On this week’s episode of Versus Trump, we discuss a major new lawsuit that challenges President Trump's announced revocation of the DACA immigration program. Listen now!

Charlie Gerstein

Civil Rights Corps

Appoint a Special Prosecutor, not an Amicus, to Challenge Arpaio’s Pardon

9/12/17  //  Commentary

This would ensure that the novel constitutional questions surrounding the pardon receive full adversarial testing

Andrew Crespo

Harvard Law School