//  4/25/18  //  Commentary

Cross-posted from Dorf on Law

Both attorneys in the oral argument in the SCOTUS travel ban case turned in what were overall very good or even excellent performances. The challenge to the Travel Ban involves both statutory and constitutional claims. I'll say a few words about the statutory claims before turning to the constitutional ones. I'll conclude with the provocative suggestion that Korematsu v. US is controlling in a way that benefits the plaintiffs.

Arguing for the plaintiffs/respondents, Neal Katyal pressed hard on two main points. First, he argued that the travel ban violates the plain language of 8 U.S.C. § 1152(a)(1)(A), which states that, subject to exceptions not pertinent here, "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s . . . nationality." Like each of its two predecessors, the current version of the Travel Ban (technically a proclamation), restricts entry based on nationality. Game over.

Not so fast, argued Solicitor General Noel Francisco. He said that 1152(a)(1)(A) by its terms only governs the issuance of immigrant visas, not entry into the country of non-immigrants or, for that matter, immigrants. Among other things, he said that the government could comply with the provision by granting visas to the immigrants covered by 1152(a)(1)(A) but then refusing them entry. Because Francisco made this point in his rebuttal, Katyal did not have an opportunity to respond, but his brief (around p. 55) does a pretty good job of explaining why the argument splits hairs: for immigrants, visas are the means by which entry is either granted or denied.

In any event, Katyal had a second statutory argument, which is that Trump was without authority to issue the Travel Ban in the first place. After all, the Constitution delegates to Congress, not the president, responsibility for immigration, and so the president only has such power as delegated by Congress. The administration points to 8 U.S.C. § 1182(f) for authority. It provides:

Whenever 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. 

Katyal argued that the lack of a time limit in the Travel Ban takes it outside of the authorization for limits for a specified period. Moreover, he contended that whatever else this provision authorizes, it cannot authorize the president to restrict entry by people on grounds that Congress has expressly considered and rejected; otherwise it would give the president a line-item veto over the entire immigration code, which Congress cannot have intended. With that argument Katyal parried various hypothetical emergencies posed for him by some of the justices. I thought his replies were persuasive, but I am not sure that the justices posing the questions thought so.

Meanwhile, on the constitutional issue, there was some backing and forthing on justiciability. More than anyone who spoke from the bench, Justice Gorsuch appeared likely to find that the constitutional issues could not be raised in litigation by persons and entities in the US on behalf of persons outside the US. It is possible to imagine a ruling on that or related grounds, but most of the justices engaged with the merits.

On these issues, SG Francisco's core strategy was to assume for the sake of argument that Trump's campaign and other statements reflected anti-Muslim animus (even while, incredibly, denying that), but then to say that given all of the inter-agency process that went into formulating Travel Ban 3.0, it should be deemed untainted. This was, to my mind, a clever strategy, because it largely avoided discussion of what Trump has actually said, relegating the matter to hypotheticals (such as one posed by Justice Kagan in which the administration of a virulently anti-semitic president bans entrants from Israel).

Some of the more liberal justices pushed back on Francisco's claim that the process as such was enough to purge the taint. Shouldn't the Court get to look behind the face of the proclamation to examine whether the process was actually legitimate and whether there really is a national security justification for the proclamation? That sort of question was tied up with another line of inquiry--pursued mostly by Justice Breyer--into whether the proclamation's provision for individualized exceptions was being so infrequently used as not to count at all.

To my mind, the taint question is important and was under-explored. Katyal gave what is either a very foolish or a very clever answer to a question posed by CJ Roberts. The Chief asked whether the taint would be purged if Trump were to "issue[] a proclamation disavowing" his prior anti-Muslim statements tomorrow. Katyal unhesitatingly said yes and noted further that he had conceded the same point in the lower court but that no disavowal had been forthcoming.

In his rebuttal, Francisco seized on this concession to say that Trump had in fact disavowed anti-Muslim animus: "the President has made crystal clear on September 25th that he had no intention of imposing the Muslim ban." Do you remember that? Neither do I. Unless I'm missing something, Francisco was apparently referring to version 3 of the Travel Ban itself, which bears the date of September 24th. Under this logic, Travel Ban 3.0 is not a Muslim Ban, so by authorizing it and promoting it, Trump was promoting something other than a Muslim Ban and therefore disavowing a Muslim Ban. I looked in Francisco's briefs and didn't see a citation of anything else to which he could be referring. So if I've got this right, he's totally wrong. Trump has not in fact disavowed the Muslim ban.

At least for now, anyway. The SG could go to Trump (either directly or through AG Jeff Sessions or through someone else with the president's ear) and advise him to unequivocally disavow the Muslim ban and apologize for having previously called for one. Indeed, in the representation of a normal client that would be obvious. Your adversary says you can win (at least a big chunk of) the case by a simple announcement from your client; you strongly advise the client to make the announcement. We all know that won't happen, however, because Trump never apologizes for anything. That's why Katyal's seemingly reckless concession was actually clever.

That said, I thought Katyal's answer to a related question was incomplete. CJ Roberts asked more generally how a court knows when the taint of an illicit motive is purged. Katyal said the answer is the "reasonable observer" test from the McCreary casewhere the Court said "reasonable observers have reasonable memories." That's a good answer to the precise question that the Chief Justice asked, which focused on how much time must elapse before the taint is purged, but the question also implicated the substantive standard of review.

Travel Ban 3.0 poses a non-trivial constitutional question because: (1) It is clear to any reasonable observer that Trump's anti-Muslim animus was a but-for cause of each version of the Travel Ban; and (2) the Ban has a clear disparate impact on Muslims; but (3) to produce Travel Ban 3.0, the government--including many people who probably do not harbor anti-Muslim bias--did some homework so that it could have a national security justification. If this were a case arising in any other context, the clear import of (1) and (2) would be that the courts would strictly scrutinize the government's justification in (3). The hard question is how to blend the strict judicial scrutiny that ordinarily applies to religious discrimination with the deferential scrutiny that courts apply to assertions of a national security interest by the executive branch.

There are at least three possibilities. First, the Court could say that the existence of religious discrimination predominates, so strict scrutiny applies. Second, the Court could say that the national security context predominates, so deferential review applies. Or third, the Court could try to average out the standards and apply something like intermediate scrutiny.

Let me conclude with a provocative suggestion. The most relevant case is the infamous Korematsu v. US, which the Court has never formally overruled. There too the Court faced the question of how to reconcile strict scrutiny for an invidious classification with an asserted and facially valid national security interest. Indeed, Korematsu was the first case to formalize what has come to be known as strict scrutiny, which the Court there deemed "the most rigid scrutiny."

As we now know, the Korematsu Court far too readily accepted the government's argument of military necessity. But at least at the level of stated rationale, the Court did not blindly defer to military process or result. Justice Black's majority opinion endorsed as his own the military rationale for the exclusion order, referring to "the real military dangers" that permitting Japanese Americans to remain at large on the west coast supposedly posed.

Korematsu is thus formal precedent for the proposition that in a case like this one the obligation to strictly scrutinize invidiously discriminatory policies remains even when the government asserts a facially plausible national security justification. At the same time, because the Korematsu Court utterly failed to do so with sufficient care, Korematsu is also a cautionary tale about what happens when the Court recites its obligation to apply strict scrutiny but in fact defers to the executive's assertion of a national security interest.

Ideally, the oral argument would have surfaced that point. I'm surfacing it now.

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