//  1/28/19  //  Commentary

Just two years (and one day) ago, President Trump signed the first version of the travel ban. It's worth doing some reflection about that saga (which I'll be doing in a series of three posts).

It is passe to observe that this administration lies--on Twitter, on cable channels, and in press conferences.  Recently, it’s become apparent that they also misrepresent things in court as they defend their policies against various legal challenges.  These revelations provide an occasion to think about how courts should evaluate the administration’s various claims.

These are some of the most recent examples of this trend that come to mind:

  • The administration claims it does not and did not have a policy of separating parents from children.  (In Secretary of Homeland Security Kirstjen Nielsen’s phrasing, “Period.”).  At the time that family separations made the news, it was obvious that they did--by that point, the administration had floated such a policy several times; key members of the administration had defended that hypothetical policy; and then families are increasingly separated from one another.  Now it is confirmed--NBC News reported and released a draft, annotated document of an administration policy to increase family separations as a way of deterring border crossings. And a Department of Health and Human Services OIG report underscored just how widespread the administration’s policy was.  The report found that “the total number of and current status of children separated  from their parents and guardians by DHS and referred to ORR’s care is unknown. As a result of the Ms. L v. ICE lawsuit, there has been an extensive public accounting of the 2,737 separated children whose parents meet the class definition for this litigation.”
  • The administration claimed that the first entry ban--signed a week after the President took office--was the result of a normal, orderly administrative process in which the heads of relevant agencies were consulted.  They accordingly asked courts to defer to the administration’s judgments in the order. Outgoing Chief of Staff John Kelly confirmed what was apparent at the time--the roll out of the order was chaos and disorderly and the order was not extensively planned in consultation with relevant agency heads; he had little clue what was unfolding.
  • The administration prepared a report pursuant to President Trump’s March 2017 Muslim ban (the March 2017 version was the second version of the ban). That report would ostenibly be used to support the third, still operative ban.  The administration's issued report maintains that there is a link between immigration and terrorism in the United States, as well as between immigration and gender-based violence. The administration’s representations about the connections between immigration and terrorism were partially the basis for the Supreme Court upholding the third entry ban in Trump v. Hawaii. The report, however, contains numerous errors (such as claiming that the number of offenses it documented occurred over six years, when the relevant time period was 50+ years), and misrepresentations (it counts people who were *specifically brought to the United States for prosecution* to support its claim about the connection between immigration and terrorism). 
  • The administration assured the Supreme Court that the third and final version of the entry ban (which the Supreme Court upheld) contained a meaningul waiver process that would allow individuals to enter the United States even though they were otherwise subject to the entry ban. In upholding the ban, the majority opinion stated that the waiver process was one of three reasons that "support the Government’s claim of a legitimate national security interest." As both Justice Breyer and Justice Sotomayor warned, there was already some evidence at the time that the waiver process was a sham. (Justice Breyer's dissent, in particular, focused on this evidence. As he noted "The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued." A recent op-ed by Betsy Fisher and Samantha Power reminded us that there is still no guidance.  Justice Breyer's dissent continued: "An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants." He also pointed out several individual applicants who seemed to merit a waiver but were denied it. As Fisher & Power's op-ed makes clear, over 98% of waiver requests are denied; and "the State Department will not even consider an applicant’s home country conditions when evaluating whether the travel ban imposes undue hardship." Apparently, it won't even consider some applicant's application materials.

There are other instances where the administration misrepresents facts about the world in order to justify its policies. But the examples above help to highlight that its misrepresentations and obfuscation occur in the context of legal challenges to the administration’s policies.  Specifically, the administration consistently maintains that all is well and good and normal when it is not; they also maintain that the facts are not as they seem.

How is this relevant?  When the entry ban litigation was ongoing--and in some of the subsequent litigation regarding other policies since--one of the most frequent refrains of the administration’s defenders is the presumption of regularity and related ideas about judicial deference to the executive branch.  Under that presumption, courts presume all is regular and orderly in the executive branch; and under the related ideas about deference, courts defer to executive branch determinations (assuming that executive processes are proceeding as normal). As I wrote at the time of the entry ban litigation, there is no reason why that presumption cannot be overcome, and why it was not overcome based on what was going on with respect to the entry ban (particularly the first one).  Presumptions are just that--presumptions. They can be overcome with sufficient evidence.

What these latest stories underscore is that it is okay--and indeed, good--that courts believed what the facts were telling them, and found that the presumption of regularity had been overcome in the relevant disputes. Anything else would have been willful blindness.  And it is willful blindness that will subsequently and repeatedly be exposed as such as more and more facts continue to confirm that all is not well and good and regular in the executive branch.

This point about the presumption of regularity will come up --and has come up again and again.  It is potentially relevant to the census dispute (where the administration is arguing that nothing was irregular about the process leading it to add a question about citizenship to the census, and that the court was therefore wrong to order any discovery outside of the administrative record).  It is relevant to the President’s descriptions of the southern border, and any potential action he might take on that basis (including any exigency or emergency justifying the wall, or the necessity of modifying the rules regarding asylum applications). And if these stories make anything clear, it is that the refusal to recognize what is going on in the executive branch will leave everyone--including the courts--looking like fools.  It will only be a matter of time before even more facts substantiate that what is happening right in front of our eyes… is really happening.



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