//  5/9/17  //  Commentary

Cross-posted on Just Security.

In the Fourth Circuit oral argument yesterday in IRAP v. Trump, Judge Barbara Keenan put her finger on a simple, basic reason why Section 2(c) of Executive Order 13769 is unlawful—and it doesn’t have much to do with the Establishment Clause. Rather, it’s a matter of everyday statutory interpretation, and the fact that President Trump has failed to establish the necessary precondition for the exercise of his statutory authority.

In Section 2(c) of the Executive Order, the President “direct[ed] that the entry into the United States of nationals of [Iran, Libya, Somalia, Sudan, Syria, and Yemen] be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.”

The President purported to impose this entry ban pursuant to a very broad—but not unlimited—delegation of authority that Congress enacted in 1952.  8 U.S.C. 1182(f) provides that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

In Section 2(c) of the Executive Order itself, the President did purport to make a finding that satisfies the precondition of § 1182(f). There are at least three major problems with the President’s predicate finding, however.

First, there’s a fundamental disconnect between the terms of that finding and the entry ban itself. In Section 2(c) of the E.O., the President “proclaim[s]” that “the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States.” Even if there were some basis for thinking that “unrestricted” entry by nationals of those six nations would be detrimental to the nation's interests, entry to the United States, under the existing processes, is anything but unrestricted. For many years, the Executive branch has imposed extensive and robust checks, both substantive and procedural, and those preconditions to entry have been remarkably effective in preventing entry by persons, from these six nations and elsewhere, who are bent upon terrorist activity. As the amicus brief for 42 former national security officials explains:

Respondents have identified no flaw in existing procedures that would justify the bans in the Order. Since the September 11, 2001 attacks, the United States has developed a rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities. This vetting system is applied to travelers not once, but multiple times, and it is continually re-evaluated to ensure its effectiveness. Successive administrations have strengthened the vetting process through robust information-sharing and data integration. This approach allows the government to identify potential terrorists without resorting to blanket bans. Respondents offer no reason to move abruptly to a national origin-based ban, when the United States already has such a tested system of individualized vetting, developed and implemented by national security professionals across the government.

Nothing in the E.O. offers any reason to think otherwise.[1]  Accordingly, the President’s “proclamation”—about how the interests of the United States would be harmed if the nationals in question were allowed “unrestricted” entry—is really beside the point, and thus does not provide any justification for the entry ban.

Second, even if one were to ignore the fact that the President’s finding was limited to the effects of a (nonexistent) “unrestricted” entry, Judge Keenan was right to focus on the statutory language of § 1182(f) itself. Congress gave the President a broad authority to deny entry to certain persons, but that authority is not unlimited. See Kent v. Dulles (1958) (refusing to construe another provision of the 1952 Act—one that is on its face even more unconditional than § 1182(f)—to give the Secretary of State “unbridled discretion to grant or withhold a passport from a citizen for any substantive reason he may choose”). § 1182(f) authorizes the President to impose entry restrictions if and only if he finds that the entry of the aliens in question (including, as here, a “class of aliens”) “would be detrimental to the interests of the United States.” As far as I can tell from a quick perusal of previous invocations of § 1182(f), Presidents typically have complied with this requirement, by identifying a discrete group of persons whose entry would, in fact, be detrimental to the interests of the United States.[2]  President Trump, by contrast, found nothing of the sort here.

As Judge Keenan noted at oral argument, the entry ban affects many millions of people.  Even assuming arguendo that it would be reasonable for the President to find, as he purported to do in Section 1(e) of the Executive Order, that nationals of the six nations in question “present heightened risks to the security of the United States,” such a finding does not establish that the entry of each and every one of the millions of covered persons would be detrimental to the interests of the United States—something that even the President himself surely does not believe.  [UPDATE:  Nor does it establish that the entry ban is important in order to achieve other foreign policy objectives--see footnote 2, above--or to deter certain unlawful conduct among the affected class of aliens.]  At most, it would establish that there is a very small, virtually infinitesimal chance that any such person’s entry would be detrimental to U.S. interests (something that could, in fact, be said with respect to most anyone in the world). That finding, however, does not satisfy the statutory standard Congress prescribed. To hear some of the judges on the court of appeals yesterday, one might think that the statute gives the President the authority to exclude persons from the United States “whenever such exclusion might reduce the risk of terrorism, however marginally and speculatively.”  Section 1182(f), however, says no such thing.

This does not mean, of course, that the Executive branch must ignore the prospect of terrorism when making entry decisions. To the contrary: Congress has specifically identified, in another subsection of § 1182, what the standard is to be for excluding individuals based upon a risk of terrorism: Subsection 1182(a)(3)(B)(i)(II) provides that a person is inadmissible if a consular officer, the Attorney General, or the Secretary of Homeland Security “knows, or has reasonable ground to believe, [the person] is engaged in or is likely to engage after entry in any terrorist activity.” The vast majority of the hundreds of millions of persons excluded by Section 2(c) of the Executive Order do not meet this standard. But those who do can—indeed, must—be denied entry.[3]

Third, the inadequacy of the President’s “finding” in Section 2(c) of the Order reveals the most fundamental problem with the entry ban:  As Richard Bernstein’s excellent amicus brief explains, it does not even pass rational basis muster.  This is so for a combination of at least three reasons, wholly apart from the President's many anti-Muslim statements:

(i) As explained above, there was no evidentiary basis for concluding that the existing procedures are inadequate to prevent the entry of persons committed to terrorism.

(ii) The criterion the President settled upon—disfavored treatment of groups of individuals based upon their nationality­, as opposed to where they live, or have recently visited, or would be vetted by immigration officials—is both grossly overbroad and greatly underinclusive, vis-à-vis the President’s findings about ongoing terrorist activity in the six countries in question. As Neal Katyal puts the point in his brief for Hawaii in the Ninth Circuit case: “The Order relies exclusively on concerns about vetting procedures and violence in Middle Eastern and North African countries, Order § 1(d), (f), but its restrictions would apply to ‘a Syrian national who had lived in Switzerland for decades,’ TRO at 37, or an individual seeking refugee status from Venezuela. And even DHS has admitted that nationality (let alone refugee status) is an ‘unlikely indicator’ of an individual’s terrorism threat.”  

(iii) The “process” on which the President relied in making the required finding and issuing the Order—if it can even be called a "proccess"—was highly irregular:  Most importantly, the President did not seek or receive any information or advice from anyone within the executive branch who would be capable of informing him about whether and how the existing procedures were inadequate or required supplementation.  (Indeed, Sally Yates testified yesterday that the White House Counsel deliberately declined to inform her—the Acting Attorney General—and all other components within DOJ with any expertise, of the existence of the Executive Order until after it was issued, and that the Office of Legal Counsel (which was reviewing the draft for form and legality) was even instructed not to inform the Attorney General about it!)

Surely this is not what Congress had in mind when it conferred such vast discretion on the President. It would be unreasonable to construe § 1182(f) to give the President the authority to so cavalierly and thoroughly disregard the ordinary processes of decision-making within the Executive branch, and to make “findings” based on nothing more than a hunch (or worse).

This is, then, a classic case of a “patently arbitrary classification, utterly lacking in rational justification” (Flemming v. Nestor). Assuming that any constitutionally protected liberty interest is at stake, such arbitrariness would itself render the entry ban a denial of due process. See, e.g.Bolling v. Sharpe, 347 U.S. at 500 (“Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty [the “liberty” to attend a neighborhood school] in violation of the Due Process Clause.”). But even if the courts were to hold that the aliens in question lack any due process rights, it is certainly fair to assume that § 1182(f) requires, at a minimum, a rational basis for a presidential entry ban. And there is no such rational basis here.  

This does not mean, of course, that President Trump had no reason whatsoever for imposing the ban. Indeed, the arbitrariness of it—the utter lack of any national security need for the ban—reveals the President’s actual justification, one that § 1182(f) does not authorize, whether or not it violates the First Amendment. As the Court explained in Romer v. Evans (1996), where the “sheer breadth” of a governmental action “is so discontinuous with the reasons offered for it”—where it “lacks a rational relationship to legitimate state interests”—then the action “seems inexplicable by anything but animus toward the class it affects.”

Notably, it does not necessarily follow that President Trump himself was motivated by religious animus, or even that an objective observer would perceive such presidential animus (although that might well be the case). At a minimum, however—and I think this gets at the core reality that virtually everyone understands about this Executive Order—President Trump imposed the entry ban not because he made any considered judgment, based upon a sober evaluation of the evidence, that the current processes for entry of nationals from these six nations were inadequate, but instead in order to fulfill his campaign promises to keep Muslims out of the United States, and to fight a war against an abstractly defined enemy: “radical Islamic terrorism.” It was, as Richard Bernstein puts it, “an opportunistic, public appeal to religious prejudice,” even if the prejudice in question was that of the President’s constituency, rather than the President himself. As Joshua Matz wrote in his amicus brief:

After repeatedly and specifically promising voters that he would ban Muslims from entering the United States, he arrived in office and promptly issued a sweeping, unprecedented, and bizarrely-structured order without any discernible connection to an actual national security threat. That order, even as subsequently revised, functioned as the “Muslim Ban” that he had repeatedly promised to voters during (and after) the campaign. In case this point somehow remained unclear, President Trump made numerous statements to the effect that excluding Muslims was the Order’s core purpose [e.g., “We all know what that means.”]. An extensive public record thus supports the inference that President Trump was following through on his animus-laden campaign promise, rather than acting for any legitimate reason.

Perhaps, as Joshua’s brief argues (see also Micah Schwartzman and Nelson Tebbe’s post yesterday), the President’s obvious objective of “following through” on his campaign pledge to exclude Muslims is an Establishment Clause violation. But whether or not it transgresses the First Amendment, a desire to make good on a President’s campaign promises—even without any taint of religious prejudice—is not an adequate or proper basis for the exercise of the broad but not unlimited authority that Congress conferred upon the President in § 1182(f).

__________________________________________

[1] The government tries to make much of a March 6 letter to the President from Attorney General Sessions and DHS Secretary Kelly, in which they write that they have “concerns about our current screening and vetting processes for nationals of certain countries that are either state sponsors of terrorism, or that have active conflict zones in which the central government has lost control of territory to terrorists or terrorist organizations.” “To the extent a government is a state sponsor of terrorism and hostile to the United States, or lacks control over territory, its passport issuances, and thus over the records of its citizens in such territory,” they write, “there is a greater risk that the United States will not have access to necessary records to be able to verify important information about individuals seeking to travel from that country to the United States.”

Of course, the President presumably can insist on “access to necessary records” as a condition of entry of all aliens—but Section 2(c) of the Order is much more draconian than that. Moreover, the Attorney General and the Secretary do not provide any evidence, or even claim, that the “current screening and vetting processes for nationals of certain countries” has actually been inadequate in any way, and, most importantly, they do not even purport to find what § 1182(f) requires, namely, that the entry of all aliens from the six nations in question would be detrimental to U.S. interests. Finally, it’s noteworthy that the letter was sent to the President the very same day that he issued his Order, and DOJ does not even represent that the President relied upon it—merely that his Executive Order was “in accordance” with it.

[2] The government cites only one case in which the President has used national origin, standing alone, as the basis for a (partial) entry ban: In Proclamation No. 5517 (1986), President Reagan suspended the ability of all Cuban nationals to enter the United States “as immigrants.” Of course, President Reagan did not find that each and every Cuban national was dangerous, or would harm the United States after entry. Instead, he issued Proclamation 5517 as a response to the Government of Cuba’s own suspension of “all types of procedures regarding the execution" of an immigration agreement between the United States and Cuba, which had “disrupt[ed] normal migration procedures between the two countries.” Reagan determined that it was in the interest of the United States to prevent almost all Cuban nationals from being able to enter the U.S. as immigrants so as to bring pressure to bear upon Cuba to comply with the required “migration procedures.” Given that objective, it was certainly fair for Reagan to have concluded that the entry of Cuban nationals would generally be “detrimental” to U.S. interests, in the sense that it would have undermined his efforts to induce Cuba’s compliance with the immigration agreement. Thus, even if the 1986 suspension of entry by Cuban nationals was a proper exercise of the President’s § 1182(f) authority, it doesn’t bear any resemblance to Section 2(c) of President Trump’s order.

[3] In the case currently pending in the Ninth Circuit, Hawaii argues (see pp. 32-34) that the Executive Order actually contradicts § 1182(a)(3)(B), and is for that reason invalid. As Andy Pincus’s brief for technology companies puts the point, “[i]nstead of creating a presumption of admittance absent any “reasonable ground” to think an alien will commit terrorist activities—as § 1182(a)(3)(B) requires—the Order creates a presumption of exclusion.”

 


The Supreme Court, Animus, And Amicus

10/10/17  //  In-Depth Analysis

Some thoughts on a brief in a case the Court had scheduled to hear today.

Leah Litman

U.C. Irvine School of Law

The Travel Ban and the Ontology of the Compelling Interest Test

10/6/17  //  In-Depth Analysis

Maybe the whole compelling interest test is misguided in Establishment Clause cases.

Michael C. Dorf

Cornell Law School

A Primer on the DACA Rescission

10/5/17  //  In-Depth Analysis

Here we address confusions and misconceptions about what DACA is (or was), and what will happen next; about the effects of DHS’s “rescission, and what the legal basis might be for that rescission; about what happens during the so-called six-month “window”; about the prospects that Trump might reverse course in March; and about the current litigation challenging DHS’s rescission.

Marty Lederman

Georgetown Law

Cristina Rodríguez

Yale Law School

Adam Cox

NYU Law School