//  6/20/17  //  Commentary

Last week, President Trump issued a “clarifying memorandum” about the “effective date” of the executive order establishing the entry ban (the 90-day suspension on entry from several Muslim-majority countries). The memorandum undermines many of the government’s arguments for why the entry ban is lawful.

As Steve Vladeck and I explained, DOJ has been arguing that the “entry ban” is merely a temporary placeholder that allows the government to review its existing entry procedures before potentially establishing new ones. DOJ had further argued that the DHS Secretary and Attorney General had determined that this “temporary pause” to allow the government to review existing entry procedures was necessary for national security. Thus, DOJ’s defense of the ban has been that the entry ban is inextricably linked to, and merely a means to allow, the government to review its entry procedures.

But the President’s clarifying memorandum severed the link between the entry ban and internal review process. The President’s memorandum says that the “effective date” of each part of the order, including the entry ban and the internal review process, is the date on which each provision is allowed to go into effect.   And because the internal review process will not be enjoined once the Ninth Circuit Court of Appeals issues its mandate, the entry ban could go into effect well after the government has finished its review of entry procedures, and after the government has potentially created new procedures for entry.

Steve and I also explained how the President’s clarifying memorandum undermines another part of DOJ’s defense of the entry ban. DOJ has been arguing that courts can look only to the “face” of the order (i.e., the order’s text) to determine whether the entry ban has a legitimate purpose. DOJ has been arguing that the order provides a legitimate purpose for the entry ban—the national-security determination that a temporary pause of entry is needed while the government reviews its entry procedures.

The problem is that the President’s clarifying memorandum either amends the executive order’s text (i.e., its face), or clarifies the original order’s text (i.e., its face), so that the entry ban does not serve this purpose. The ban’s effective date is now (or always was, as the memorandum purports to “clarify” the order) unrelated to the government’s review of entry procedures, and whether the government has finished its review of entry procedures. Thus, the “face” of the order does not provide a legitimate justification for the entry ban as the ban is written.

Steve and I explained (as I did in some of my other posts), how the clarifying memorandum undermines DOJ’s legal defenses for the entry ban. And Marty Lederman has further explained why the clarifying memorandum means the Supreme Court should deny the government’s petitions for certiorari and stay requests.

In this post, I wanted to use the clarifying memorandum as the occasion to highlight an amicus brief that was filed in the Supreme Court to oppose the government’s requests to stay the injunctions against the entry ban. Disclosure: I’m one of the signatories to the amicus brief, which Corey Brettschneider quickly highlighted last week when it was filed.

In brief (that’s a pun), the brief argues that the entry ban violates the Establishment Clause’s prohibition on animus toward particular religions. (If this argument sounds familiar, it should—we filed briefs making a similar argument to the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals, and several contributors to this blog have written about those briefs here. Joshua Matz, the publisher of this blog, was counsel to the amici in the courts of appeals; we are incredibly fortunate to have history-maker Roberta Kaplan as our counsel in the Supreme Court.)

Both the President’s issuance of the clarifying memorandum and our amicus brief relate to how to think about the purpose of the entry ban. Writing last week, Steve and I posed the question about the entry ban’s purpose as follows:

So what, you ask, might be the true purpose of a “floating” 90-day ban on entry by the nationals of six Muslim-majority countries? A ban on entry that goes into effect at some undetermined point in the future, months after the government has completed the internal review of its entry procedures for which the ban was initially held out as a necessary prerequisite, and more than three months after the AG and DHS had “determined” that a temporary suspension was warranted?

“Of course, we don’t have to guess,” we answered. The President’s own memorandum means that the “face” of the order undercuts the legitimate purpose offered for the entry ban—to allow the government to review existing entry procedures.

By discrediting (and in my view, eliminating) the only legitimate purpose for the entry ban that had appeared on the “face” of the order, that takes us to the point where our amicus brief begins—what should happen when there is substantial evidence that the entry ban was enacted for an illegitimate purpose, namely, animus toward Muslims? This case now involves a ban on entry from several Muslim-majority countries that the President wants whenever he can get it, and the entire executive order makes clear that the entry ban’s stated legitimate purpose does not justify the ban as it is written.

The face of the order has always contained some hints about the order’s purpose, which Gerald Neuman explained at Just Security, drawing from an amicus brief by Take Care contributor Aziz Huq. The first executive order (which the second order references and replaces) declares that:

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Those phrases should sound familiar—they parallel the press release that accompanied then-candidate Trump’s proposal to ban all Muslims from entering the United States. The order references “hostile attitudes” toward the United States; candidate Trump’s press release on his proposed Muslim ban had stated: “There is great hatred towards Americans by large segments of the Muslim population.” The order refers to “violent ideologies”; the press release explained that “large segments of the Muslim population” believed they should have the choice to be “governed according to Shariah,” which the presser stated “authorizes such atrocities as murder.” And so on.

Now add to that the litany of related statements to the press and statements on social media, some from before the election, some from after the election but before inauguration, and some from after inauguration (including several from the last few weeks).

As our brief explains, the Constitution prohibits government action that is driven by animus toward a particular religion (here, Islam). That anti-animus principle is even more central to the travel ban case now that the government has amended (or clarified) the order in a way that eliminates the legitimate purpose the government had offered for the entry ban.

Our brief situates the Establishment Clause’s anti-animus principle in the context of the various doctrines that recognize how animus-based governmental action is constitutionally problematic (including doctrines that relate to the Equal Protection Clause and the Free Exercise Clause). It then addresses several questions about purpose inquiries in constitutional law, and why it’s important not to allow the animus-laden ban to go into effect before the Court adjudicates the order’s legality, if it chooses to do so by granting one of the government’s petitions for certiorari.

I’ll end the post by drawing on something else I’ve written about with respect to the entry ban litigation, as have other contributors to this blog—the parallels between the entry ban case and Korematsu v. United States. Korematsu is the case in which the Supreme Court (to its shame) upheld an order that required Americans of Japanese descent to report to internment camps. As Ian Samuel and I explained, part of the government’s defense of the entry ban

vividly… evokes another case from our history, also involving a constitutional challenge to a national-security executive order, where the courts were also urged to accept the executive’s national-security rationale at face value, without considering whether the executive’s stated national-security purpose made any sense or was the real motivation for the order.

The case we were referring to is Korematsu.  And the President’s clarifying memorandum adds another, possible parallel between the entry ban case and Korematsu. Regarding Korematsu,

[i]n 2011, the United States filed a formal “admission of error” acknowledging that the government had misled the Court in Korematsu. By the time of the Supreme Court case, the Solicitor General knew that a key intelligence report undermined the government’s stated rationale for the racial discrimination, but concealed it …. Other stated justifications for the law had also been internally discredited by the FBI.

Here, there is no secret intelligence report or FBI investigation that discredits the government’s stated rationale for the entry ban (that we know of, at least). But the government’s own actions and the order itself do it just as well.


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