Marty Lederman // 6/19/17 //
Cross-posted at Just Security
Last week, I published a post questioning whether there is any ground for the Supreme Court either to grant the government’s petitions for certiorari in the two “entry ban” cases, or to stay the preliminary injunctions in those cases over the summer. In that post I also explained why the Court’s decision on the latter question (whether to permit the entry ban to apply over the summer) is tantamount to a final decision on the merits of the case.
Shortly thereafter, the government filed a supplemental brief in support of its application for a stay of the injunction in the Ninth Circuit case. In that filing, the Acting Solicitor General requested the Court to construe its stay application as a second petition for a writ of certiorari, so that the Court can hear the Hawaii case on the merits “in tandem with IRAP.” That is to say, the government is now asking the Court to consider both cases on the merits this Fall. The Hawaii plaintiffs will file a response tomorrow, and the government will file a reply on Wednesday. Then, presumably, the Justices will consider the petitions and the stay applications at their final Conference of the Term, on Thursday.
In this post, I offer three quick reactions to the government’s latest filing in the Ninth Circuit case—the first two on questions concerning what the Court should do now with the government’s applications, and the third with respect to the merits of the statutory ultra vires argument on which the Court of Appeals for the Ninth Circuit relied.
As I explained in my post last week, if the Court were to grant the petitions, and schedule the cases as the government proposes, then the Section 2(c) entry ban will have been overtaken by events by the time the Court considers the matter. Either the 90-day ban will have expired by its terms (if the Court stays the preliminary injunctions and the ban therefore runs over the summer), or it will have outlived its function, because the “internal review” to which it is tethered, and for which it was designed, will be completed, and new nation-specific rules for entry will be in place (assuming the Administration complies with the Executive Order). [As I explained in the post at much greater length, the court of appeals ruled that there was no legal basis for Judge Watson to enjoin the Department of Homeland Security from performing the “internal” review of country-specific “screening and vetting protocols and procedures” that Section 2 of the Executive Order mandates. That review should begin imminently, and should be completed before October, at which time new vetting procedures and entry restrictions presumably will be in place. The (nominal) purpose of the entry ban is only to preclude nationals of the six nations from entering the U.S. during that internal DHS review.]
I noted that in its filings in the Fourth Circuit case, the Acting Solicitor General did not explain why the Court should grant cert. under such circumstances, when there will be nothing for the Court to review. Surprisingly, the Acting Solicitor General does not even mention these timing problems in his new filing in the Ninth Circuit case, let alone offer any justification for certiorari in light of them. Accordingly, I still can’t think of any good reason for the Court to grant the petitions.
Likewise, the government’s new filing does not offer any new arguments for why the Court should stay the preliminary injunctions over the summer—which is (for reasons I explained previously) the whole megillah, i.e., the decision of the Court that will determine the fate of the entry ban.
On the critical question of what “irreparable harm” might befall the nation if the Court permits the status quo to continue, the pleading is conspicuously silent: It does not suggest any reason why the longstanding vetting procedures for entry—together with the more robust general vetting requirements the Trump Administration itself has implemented—are in any respect inadequate to forestall domestic terrorist incidents by new entrants. (On page 29, the Acting SG stresses that the new procedures require the applicants themselves, rather than foreign states, to provide the relevant information, without which entry is barred. I fail to see, however, why that distinction as to the source of information renders the new requirements inadequate, for purposes of establishing irreparable harm. Nor do I understand what the SG means when he insists that the two forms of information-gathering address different “concerns.” Aren’t both designed to smoke out whether the applicant is a terrorist risk?)
If the Supreme Court considers the merits (either on the applications to stay the injunctions or on certiorari), I have argued that the cases ought to be resolved on statutory grounds, in particular, on the theory that the President acted ultra vires because 8 U.S.C. 1182(f) does not authorize the entry ban. The Ninth Circuit panel resolved the case on this ground, holding that “the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.” In the earlier Fourth Circuit decision, Judges Keenan and Wynn offered similar ultra vires arguments in their separate concurrences.
The new filing includes the government’s first substantial response to this argument. It is quite revealing.
Section 1182(f) 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.
The Acting SG’s submission virtually concedes that President Trump did not make the requisite finding “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.” Instead, it acknowledges that the incoming President simply did not know whether entry of the nationals of the six countries in question would be detrimental: “The President is uncertain,” the filing explains, “whether certain foreign governments — especially those that sponsor or shelter terrorism — are able and willing to provide sufficiently complete and reliable information to “tie” particular foreign nationals to “terrorist organizations,” “identify” them “as contributors to active conflict,” or establish a “link” between them and “their propensity to commit terrorism.” “In light of that uncertainty,” the filing continues, “and the accompanying risk that our government might fail to detect a terrorist threat, the President determined that placing a 90-day pause on entry of nationals from these countries (subject to individualized waivers) is appropriate to avoid detriments to the national interest.”
It’s not hard to see why this chain of reasoning does not satisfy 1182(f)’s precondition. That statutory delegation does not say that the President can ban entry when he doesn’t know enough about the dangers; when he suspects there might be a problem; where there’s a risk—or, more accurately, when he senses a risk, however small, that the entry might be detrimental to U.S. interests; or where, as here, he decides—without resort to any evidence or basis in fact at all—that the existing, longstanding processes might be inadequate, notwithstanding that those processes have not resulted in any terrorist incidents by admitted aliens and were painstakingly developed by a robust interagency process over many years. Instead, the statute requires a genuine—let’s call it a “bona fide”—finding that the entry of the aliens itself “would be detrimental to the interests of the United States.”
If the SG’s reading of the statute were correct, then an incoming President would be permitted to categorically ban all entry of all persons into the United States, at least at the beginning of his term, based entirely on his “uncertainty” about particular subsidiary questions (e.g., the reliability of other nations’ representations), and because the President intuited some risk, no matter how minuscule and speculative, that any entering alien might do something—anything—detrimental to the nation’s interests. Section 1182(f) does not confer an authority remotely as broad as that.
This does not mean, of course, that the Executive must permit entry of all aliens who pose a risk of terrorism, absent a presidential finding that their entry will, in fact, be detrimental. Not surprisingly, Congress has—elsewhere in section 1182 itself—established specific criteria for terrorism-based exclusions. Subsection 1182(a)(3)(B) renders inadmissible aliens who have, inter alia, “engaged in a terrorist activity”; those who have “incited terrorist activity”; those who “endorse or espouse terrorist activity or persuade others to” do so or who “support a terrorist organization”; those who have received military-type training from or on behalf of a terrorist organization; . . . and significantly, any alien whom government officials know or have “reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity.” As Judge Wynn explained in his concurrence in the Fourth Circuit case (see pages 118-120), it is very hard to square President Trump’s categorical exclusion of 180 million or so aliens on the basis of far more speculative concerns about the risks that any one of them might engage in terrorism after entry—concerns based exclusively on the conditions within the nations of which they are nationals—with the “reasonable ground to believe . . . is likely to engage after entry in any terrorist activity” standard that Congress specified just a few subsections away in section 1182.
The SG’s brief makes two other significant moves, as well. First, invoking the very broad and seemingly permissive language of section 1182(f), it suggests that Congress’s delegation of authority to the President is virtually unbounded—or, at the very least, that it precludes any prospect of judicial review of the President’s exercise of his 1182(f) authority. On this view, there is no role for the federal judiciary to play, even where the President’s action is, as here, palpably arbitrary and capricious, and where it is manifestly designed merely to satisfy a campaign promise, rather than to respond to any serious assessment of the relevant evidence reached by expert agencies within the Executive branch.
As Judge Wynn explained, however, the Court has rejected such “unbounded delegation” arguments with respect to other provisions of the same 1952 Act, even though the plain language of those provisions appeared to afford the Executive even more unconstrained discretion than section 1182(f) does:
For example, in United States v. Witkovich, 353 U.S. 194 (1957), the Supreme Court interpreted Section 242(d)(3) of the Immigration and Nationality Act of 1952, which provided that the Attorney General could require any alien subject to a final order of deportation that had been outstanding for more than six months “to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper.” 353 U.S. at 195 (quoting 8 U.S.C. § 1252(d)(3) (1952)). The Government asserted that the plain language of the provision afforded the Attorney General near unfettered discretion to demand information from such aliens. Id. at 198. Although the Supreme Court acknowledged that “[t]he language of [Section] 242(d)(3), if read in isolation and literally, appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of [such] aliens,” the Supreme Court limited the Attorney General’s authority under Section 242(d)(3) to “questions reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue.” Id. at 199, 202. . . .
The Supreme Court also applied the delegation of authority canon in Kent v. Dulles, 357 U.S. 116 (1958). There, the Supreme Court was asked to construe a statute providing that “[t]he Secretary of State may grant and issue passports . . . under such rules as the President shall designate and prescribe for and on behalf of the United States.” 357 U.S. at 123 (internal quotation marks omitted) (quoting 22 U.S.C. § 211a (1952)). Pursuant to that authority, the executive branch promulgated a regulation authorizing the Secretary of State to demand an affidavit from any passport applicant averring whether the applicant had ever been a Communist and barring issuance of passports to Communists. Id. at 118 & n.2. Under that regulation, the Department of State denied a passport to an applicant on grounds he refused to submit such an affidavit. Id. at 118–19. Thereafter, the applicant sought a declaratory judgment that the regulation was unconstitutional. Id. at 119. Despite the breadth of the plain language of the delegating statute, the Supreme Court “hesitate[d] to impute to Congress . . . a purpose to give [the Secretary of State] unbridled discretion to grant or withhold a passport from a citizen for any substantive reason he may choose.” Id. at 128. Emphasizing (1) that the authority to deny a passport necessarily involved the power to infringe on the fundamental right to travel and (2) that the statutory delegation provision’s “broad generalized” terms were devoid of any “explicit” indication Congress had intended to “give the Secretary authority to withhold passports to citizens because of their beliefs or associations,” the Supreme Court refused “to find in this broad generalized power an authority to trench so heavily on the rights of the citizen.” Id. at 129–30.
Finally, the Acting SG suggests that even if the judiciary has some appropriate role in assessing presidential findings under 1182(f), “[t]he President’s ‘[p]redictive judgment[s]’ warrant the utmost deference” (quoting Department of the Navy v. Egan (1988)). “Especially ‘when it comes to collecting evidence and drawing factual inferences’ in the national-security context,” the brief argues, “‘the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate’” (quoting Holder v. HLP (2010)).
Suffice it to say that this is probably not the most propitious case for the Solicitor General to be making a paean to the President’s “[p]redictive judgment[s],” and the “factual inferences” that he has drawn from “collect[ed] evidence.”