//  5/25/17  //  Quick Reactions

Third time’s the charm, right?[1] Today, the 4th Circuit Court of Appeals issued its decision in International Refugee Assistance Project v. Trump, the case about the legality of Executive Order 13780.  EO 13780, among other things, temporarily suspends entry into the United States from the nationals of six Muslim-majority countries.

The en banc 4th Circuit heard oral argument in IRAP v. Trump a mere 2.5 weeks ago. It issued a decision today, and the actual opinion was almost 200 pages.  There were several separate opinions, which I’ll briefly survey here.

For The Court.  The Chief Judge of the 4th Circuit, Chief Judge Gregory, wrote the opinion for the court.  Judges Motz, King, Wynn, Diaz, Floyd, and Harris joined the opinion in full, while Judges Keenan and Thacker concurred in the key merits determination of the opinion.

The opening of the opinion is itself remarkable for how it describes the order, and how these nine judges view the order. The opinion describes the order in these words: “in text [it] speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

The opinion then works through the various arguments the government had made about why the court could not adjudicate the lawfulness of the order—that the plaintiffs did not have standing; that the challenge was not ripe for adjudication; and that the executive branch’s decision to deny entry into the United States was unreviewable under the doctrine of consular nonreviewability.  The court rejected all of these defenses.

Then came the merits.  Readers may recall that there are both statutory and constitutional claims in the case—statutory claims that argue the order violates a congressional statute (or two); and constitutional claims that argue the order violates a provision of the constitution (or two). The majority of the court opted to decide the case on constitutional grounds.  The court explained that while the doctrine of constitutional avoidance means that courts should look to decide cases on non-constitutional grounds where possible, the statutory claims in the case would not resolve the legality of all parts of the executive order.  Thus, the court reasoned, it would have to reach the constitutional claims anyways, and so it proceeded to do so without adjudicating the statutory claims.

The court then concluded that the plaintiffs were likely to succeed on the merits that the executive order violates the establishment clause.  There are four parts of the majority opinion I wanted to flag; these are just flags, as I’m sure there will be a lot of analysis to come.

First, in my view, the court of appeals sensibly reconciled the two lines of cases the challengers and government had been invoking.  The challengers and some district courts had applied the so-called “traditional” or “domestic” Establishment Clause cases, under which courts scrutinize facially neutral government action to see whether it was motivated by an impermissible purpose. The government, on the other hand, argued that the proper cases to apply were cases in the immigration context (specifically Kerry v. Din and Kleindienst v. Mandel), and that these cases directed courts to ask only whether a government action was “facially legitimate and bona fide.”

The court of appeals (reasonably in my view) explained that, under either standard, it had to at least look at the evidence the plaintiffs assembled about the order’s (allegedly) impermissible purpose.  Otherwise, there would be little meaning to the “good faith” part of the doctrine the government was invoking.  As Daniel Hemel (and others) have explained on this blog, that’s a perfectly sensible (and in my view, correct) way to understand the cases.

The key parts of the majority opinion are as follows:

“We agree that Mandel is the starting point for our analysis, but … we find that its test contemplates the application of settled Establishment Clause doctrine in this case.” (page 45)

“To be ‘facially legitimate’ there must be a valid reason for the challenged action stated on the face of the action …. And as the name suggests, the ‘bona fide’ requirement concerns whether the government issued the challenged action in good faith.” (page 49)

Second, here is how the court specifically reconciled the cases—stating when Mandel and Din suggest more meaningful scrutiny is appropriate. In brief, the court explained that when a plaintiff made a particularly strong showing, with readily discoverable statements, that action was taken for impermissible reasons, only then would a court would look beyond the face of an order:

“Justice Kennedy explained that where a plaintiff makes ‘an affirmative showing of bad faith’ that is ‘plausibly alleged with sufficiently particularity,’ courts may ‘look behind’ the challenged action to assess its facially legitimate justification.” (page 50)

 “Mandel therefore clearly sets a high bar for plaintiffs seeking judicial review of a constitutional challenge to an immigration action …. Where plaintiffs have seriously called into question whether the stated reason for the challenged action was provided in good faith, we understand …. That we step away from our deferential posture and look behind the stated reason for the challenged action.” (page 50)

“Once plaintiffs credibly call into question the political branches’ motives for exercising that power [in the immigration realm], our reason for deferring is severely undermined.” (page 53)

“In the rare case where plaintiffs plausibly allege bad faith with particularity, more meaningful review—in the form of constitutional scrutiny—is proper.” (page 53).

Third, the court of appeals declined to adopt the government’s rule that courts could not consider any statements that were made by an official before the official took office, and specifically while the official was on the campaign trail.

“We decline to impose a  bright-line rule against considering campaign statements, because as with any evidence, we must make an individualized determination as to a statement’s relevancy and probative value in light of all the circumstances.  The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action.”  (page 65)

 “For a past statement to be relevant to the government’s purpose, there must be a substantial, specific connection between it and the challenged government action. And here, in this highly unique set of circumstances, there is a direct link between the President’s numerous campaigns statements promising a Muslim ban that targets territories, the discrete action he took only one week into office executing that exact plan, and EO-2, the ‘water down’ version of that plan that ‘gets just about everything’ and ‘in some ways, more.” (page 67)

“These statements are the exact type of readily discoverable facts that we use in determining a government action’s primary purpose. They are explicit statements of purpose and are attributable either to President Trump directly or to his advisers. We need not probe anyone’s heart of hearts to discover the purpose of Eo-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms.” (page 58)

 Fourth, the court repeatedly emphasized the unique facts of this case:

“[W]e find that … Mandel’s test still contemplates meaningful judicial review of constitutional challenges in certain, narrow circumstances, as we have here.” (page 49)

“Since Justice Kennedy’s concurrence in Din, no court has confronted a scenario where, as here, plaintiffs have plausibly alleged with particularity that an immigration action was taken in bad faith.” (page 52)

Some additional notes:

On the merits, the court found that “from the standpoint of the reasonable observer …. EO-2’s primarily purpose is religious.” (page 56).  Several of the contributors on Take Care signed an amicus brief, written by Joshua Matz (the publisher of this blog), arguing that the EO is unlawful not based on the endorsement test (which that quote fromp page 56 invokes), but another part of the Establishment Clause—namely, the Establishment Clause's prohibition on government action that is taken on the basis of religious animus.  Other parts of the opinion appeared to embrace this reasoning--the anti-animus-principle-for why the order is invalid.  In a footnote (page 70 note 20), the court cited the amicus brief and wrote: "There is simply too much evidence that EO-2 was motivated by religious animus for it to survive any measure of constitutional review."  (For a discussion of the amicus brief and its reasoning, see here or here.)

The court rejected the government’s argument that an action is taken in “good faith” if the face, or text, of that action recites a legitimate purpose:

That EO-2’s stated objective is religiously neutral is not dispositive; the entire premise of our review under Lemon is that even facially neutral government actions can violate the Establishment Clause.” (page 59)

Relatedly, in a footnote, the court suggested the order may not be facially neutral: “[B]y directing the Secretary of Homeland Security to collect data on ‘honor killings’ committed in the Untied States by foreign nationals, EO-2 incorporates ‘a stereotype about Muslims that the President had invoked in the months preceding the Order.” In doing so, the court cited our amicus brief, and wrote that “this text in EO-2 [is] yet another marker that its national security purpose is secondary to its religious purpose.” (page 60 note 17)

Finally, as to the scope of the order, the majority upheld it in all respects but one—issuing an injunction against the President himself.  The court thus lifted the injunction as to the President but otherwise left the preliminary injunction in tact.  Like I said, third time’s the charm.

Then the separate opinions:

Judge Keenan and Judge Thacker concurred. They agreed with the majority that the plaintiffs were likely to succeed on their claim that the EO violated the Establishment Clause, specifically because it was not “bona fide” or in good faith. But Judge Keenan and Thacker also concluded that the order was not facially legitimate because it violated a statute.  Specifically, Judge Keenan and Judge Thacker concluded the order violated section 1182(f)—the provision authorizing the President to suspend entry of certain classes of non-citizens under certain conditions. They concluded that the President, in the order, failed to satisfy the threshold requirements the statute created for a lawful exercise of authority.  This argument is the one Marty Lederman explained on this blog just after the argument.

Judge Keenan, writing alone, also concluded that the order did not violate another statute—section 1152, which prohibits granting or denying visas on the basis of nationality. Judge Thacker did not join that portion of Judge Keenan’s opinion because in…..

Judge Thacker’s concurrence, she concluded that the order did violate section 1152. Ian Samuel has explained this statutory argument in depth at Notice and Comment. 

 While Judge Thacker concurred in the majority’s opinion, and agreed with the conclusion that the order likely violated the Establishment Clause, she reached that conclusion only after adopting the rule of “not considering remarks made by candidate Trump before he took his presidential oath of office.”  Thus, Judge Thacker concluded that evidence after January 21 itself was sufficient to establish that the order likely violated the Establishment Clause. 

She wrote: “All of this evidence—arising after January 20,, 2017—leads to only conclusion: the principal motivation for the travel ban was a desire to kep Muslims from entering this country.” (page 139)


Our constitutional system creates a strong presumption of legitimacy for presidential action; however, this deference does not require us to cover our eyes and ears and stand mute simply because a president incants the words ‘national security.’” (page 139)

Judge Wynn’s concurrence also concluded that the order violated a statute--section 1182, the provision that delegates authority to the President to suspend the entry of classes of persons (this is the same conclusion Judge Keenan and Judge Thacker reached in Judge Keenan's concurrence). In reaching this conclusion, Judge Wynn relied heavily on the doctrine of constitutional avoidance to interpret the statute in a way that did not authorize this order, which “engage[s] in invidious discrimination.” (page 110)  The end of his opinion explained at length the grave harms invidious discrimination raises.  Quoting the dissent in Korematsu v. United States, he wrote:

"Invidious discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.  It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States." (page 94)

Judge Niemeyer dissented, joined by Judge Shedd and Judge Agee.  Their disagreement was with the following: 

First, they disagreed with the majority’s reading of Mandel.  The disagreement appears to boil down to whether courts can only look “for bad faith on the face of the executive action itself.” The dissent said that’s the only place courts can look for evidence of bad faith—on the face of (i.e., the text of) the order, and not “extratextual” sources.

To support this reading of the cases, the dissent emphasized different portions of Justice Kennedy’s opinion in Kerry v. Din, and accused the majority of misreading it. The majority read Din to confirm that where a plaintiff makes an affirmative showing of bad faith that is plausibly alleged with sufficient particularity, courts may look behind the challenged action to assess its facially legitimate justification.

Not so fast, the dissent said. In Din, Justice Kennedy had said only that “absent an affirmative showing of bad faith,” which the plaintiff in Din had not made with sufficient particularity, courts do not “look behind” the government’s stated reason for an action (page 163).

To be frank, I don’t understand the dissent’s claim that the majority misread Din. Rather, the question in this case has always been whether the Din caveat is real or not—that is, what would the court do in a case where, unlike Din, there is an affirmative showing of bad faith that has been made with sufficient particularity? 

This is that case.  The question is whether that matters.  That is, will the Court will go back on statements suggesting that actions that appear, based on sufficiently particular evidence, to have been taken in bad faith, would be subject to more constitutional scrutiny? Will the Court recognize such a case when confronted with it?

Judge Niemeyer is right, of course, that in Din, Justice Kennedy did not hold that where there is an affirmative showing of bad faith, made with sufficient particularity, courts may look behind the reason given by the government. But that’s just because Din was not that case; there was no affirmative evidence with sufficient particularity of bad faith there; here, there’s enough of that evidence to fill up pages of the federal reporter. Of course the Justice could go back on his words in Din. This case may test whether he will do so.

 Second, the dissent maintained that the majority’s conclusion was not even correct under the traditional or domestic Establishment Clause cases.

Third, the dissent would not have considered any campaign statements in assessing the plaintiffs’ legal claims. The dissent listed a long parade of terribles and horribles and difficult cases that might arise were a court to consider pre-inaugaration statements.  But the court offered no evidence that this case is a difficult case.  And it offered no evidence of any potentially relevant intervening acts, events, or influences that might call into question the relevance of the statements the majority considered in this case, particularly when those statements had been referred to and incorporated by post-inauguration statements.

Judge Shedd dissented, joined by Judge Niemeyer and Judge Agee.  This dissent emphasized that the President’s actions warranted additional deference because they were taken in the name of national security.  The closing paragraph opined that “the real losers in this case are the millions of individual Americans whose security is threatened on a daily basis by those who seek to do us harm.”

Judge Agee dissented (joined by Judge Niemeyer and Judge Shedd).  This dissent argued that the plaintiffs did not have standing to raise their claims.


[1] I have arbitrarily decided this is “round 3” of the litigation—round 1 was all of the litigation concerning the first order, EO 13769; round 2 was the district court litigation concerning the current order, EO 13780; which means we are now in round 3, the court of appeals litigation concerning the current order EO 13780.

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