//  10/17/17  //  Quick Reactions

 

 Note: This post has been udpated.

There has been enough litigation concerning the various iterations of the entry ban that it’s no longer possible to title posts “See You in Court 9.0,” 10.0, and so on. Today, Judge Watson (in the District Court of Hawaii) granted the plaintiffs a temporary restraining order, preventing the implementation of the latest set of entry restrictions (Proclamation No. 9645).

Marty Lederman explained the scope of the restrictions here; I’ll refer to the restrictions as “EO-3” for ease of reference (and also because that’s how Judge Watson referred to them). The restrictions apply to all of the same countries the second executive order did, save for one (Sudan), plus three others the second order didn’t apply to (Chad, North Korea, and Venezuela) to varying degrees (i.e., to different kinds of entry).

Judge Watson enjoined the entry restrictions on the ground that they exceeded the authority granted to the President under the Immigration and Nationality Act, which allows the president to suspend entry when 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.” Judge Watson also concluded that the restrictions violate the INA’s prohibition on discrimination on the basis of nationality. Those were also the bases on which the Ninth Circuit had enjoined the second order.

Ilya Somin has written a quick take on Judge Watson’s order here. To his analysis I’d add the following:

(1) Judge Watson’s decision relied heavily on the Ninth Circuit’s decision in Hawaii v. Trump in several places, including when the decision determined that the plaintiffs had standing; that the President had not made the findings required by the INA to justify the suspension; and that the INA prohibits entry suspensions on the basis of nationality, in the circumstances of this case. The Supreme Court vacated, in light of Munsingwear, the Fourth Circuit’s decision that had preliminarily enjoined the second order. But it hasn’t yet vacated the Ninth Circuit’s decision, because the Ninth Circuit decision had enjoined the suspension of the refugee program, and that suspension lasts for a few more days.

Once the Supreme Court vacates the Ninth Circuit decision—as I expect it will—I’d imagine the government will quickly seek vacatur of the district court decision on the ground that the decision on which the district court based its judgment has been vacated. (The government has already announced it’s going to appeal the district court’s decision.) Even if the district court would reach the same conclusion without the Ninth Circuit’s explicit guidance on the books, the government could still obtain a vacatur and get a do-over in the district court. That might be an appealing route for the government because….

(2) The Ninth Circuit motions panel for this month is Judge Wardlaw, Judge Gould, and Judge Watford. Judge Gould was on the previous Ninth Circuit panel that concluded the second executive order exceeded the President’s authority under the INA. As resident Ninth Circuit experts Brian Goldman and Jaime Santos noted, the motions panel would hear any emergency motion by the government that sought to put the district court’s ruling on hold. (The government could appeal the ruling if the ruling is construed as a preliminary injunction.)

If the government wants to avoid that motions panel and gamble for a better one next month, they could wait a little bit of time, expecting that the Supreme Court will soon vacate the Ninth Circuit decision on which the district court relied (since the suspension of the refuge program ends in six or so days). And if the government waits a little bit of time to file an emergency motion to stay, they could either ask for a vacatur from the current, less-than-favorable motions panel (in light of the Supreme Court’s likely vacatur of the Ninth Circuit decision), or push the briefing to last through next month and wait to see whether next month’s motions panel is any more favorable to them, in which case they could seek fuller review/accompanying stay, rather than a motion that’s predicated only on the Supreme Court vacating the underlying Ninth Circuit decision.

It’s not crazy to think that the government might opt for that litigation strategy. As Steve Vladeck wrote on SCOTUSblog, the then acting solicitor general appeared to rely on procedural quirks and brief-timing strategies to maximize the previous entry ban’s chances rather than taking a shot at a full blown argument and decision in the Supreme Court.

(3) As Judge Watson noted, the current order certainly doesn’t put forward a lot by way of justifications for the set of entry restrictions it imposes. Like its predecessor EO, EO-3 makes no finding that “nationality alone renders entry of this broad class of individuals a heightened security risk.” Thus, the fact that the countries subject to the order purportedly don’t share the requisite information with the United States (i.e., meet the global baseline criteria) doesn’t explain why a national of any those countries who’s lived in Canada since she was 18 months old would be a security risk.

The order also doesn’t reveal why existing law is insufficient to address the President’s concerns. The order acknowledges that Iraq doesn’t meet the information-sharing/global baseline criteria that the order purportedly used to select which countries were subject to the order. But instead of entry restrictions, the order merely imposes “heightened scrutiny” on Iraqi nationals. Why wasn’t heightened scrutiny enough for nationals of other countries, especially when the reasons the order gave for exempting Iraq apply to other countries? (The order explained that Iraq is a valuable partner in fighting terrorism, but so too are Chad and Libya.)

Similarly, the order acknowledged that Venezuela doesn’t meet the global baseline criteria, but then only imposes restrictions on certain Venezuelan government officials. Why is the entry of Venezuelan nationals not a security risk when Venezuela doesn’t meet the purported criteria for subjecting a country to entry restrictions? (Many countries may not meet at least some of the government’s selection criteria, as the Government Accountability Office has acknowledged.)

Likewise, the order doesn’t explain the type of restrictions in terms of a security determination. All of the countries purportedly don’t meet the same global baseline criteria, but the countries are subjected to different categories of entry restrictions. For example, nationals of Libya can enter as long as they don't enter on business or tourist visas, but nationals of Iran cannot enter except based on student or exchange visas. If the security risk arises from the fact that the countries subject to the order don’t provide the requisite information about any nationals, why are some nationals allowed to enter but others not? And why not impose the same entry restrictions on all the countries that fail to provide the requisite information (i.e., all students, or all tourists)?

The inclusion of entry restrictions on Venezuela government officials is also a little odd. Does the President really think that Venezuelan government officials are likely to commit acts of terrorism, or are terrorists? And the fact that the order had to rely on another criteria besides nationality (government service, or government office) further undercuts the government’s assertion that nationality is a meaningful proxy for security risk.

I haven’t yet come to a conclusion on whether I think the current order violates the INA or the Constitution. As Garrett Epps and Steven Mazie have explained, the challengers to this order face a more uphill battle than in previous challenges because this order, at least temporally, followed a period in which the government made factual findings before announcing a policy. It’s not clear that those factual findings led to the policy, as opposed to the policy being preordered and in search of any findings to support it, but that’s a question for another day. At least for the time being, Judge Watson exposed numerous shortcuts and conclusory assertions in the order, which at least some commentators (including Peter Margulies*) think is enough to invalidate the order given the order’s other deficiencies.

(Reflecting on the order’s incoherence, Ben Wittes asked: “Can anyone articulate a coherent theory explaining how keeping five-year-old Syrians and Chadians—but not military-age Iraqis or Malians—out of this country on a near categorical basis will make anyone in the U.S. more secure … is there even a plausible theory under which this policy makes sense? I don’t think there is.”)

(4) I’m sure we’ll hear, over the next few days/weeks, some over-hyped ridiculing of Judge Watson’s opinion (since we hear that pretty much any time a judge rules against the Trump administration). I’d like to say a preemptive word in defense of Judge Watson’s reasoning and tone, which might not be what I’d choose if I had life tenure, but I think nonetheless serves an important function. First, Judge Watson’s introduction and factual summary depicted EO-3 as embedded in the ten (!) month period that began with the President’s first order suspending entry (and exempting religious minorities from that suspension). (“Enter EO-3.”) That’s a legally relevant fact because, as several commentators have observed, it calls into question whether the President suspended entry on the basis of information that was gleaned as part of the government’s review of existing procedures, or whether, instead, the President suspended entry in part to reaffirm a conclusion he had already made in the first order (which was signed within a week of him taking office with no consultation or input from the relevant agencies).

Second, Judge Watson notes that “EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to … the founding principles of this Nation.” Judge Watson also cited, in footnote 9, a series of tweets in which the President’s statements suggest the entry ban is a “P.C.” version of some forbidden end (i.e., discriminating against Muslims). The Ninth Circuit didn’t hold the previous order unconstitutional (Judge Watson had), and Judge Watson didn’t find that this order (EO-3) is likely unconstitutional because it discriminates against Muslims. So why the reference?

I think it relates to a point I made after the Court removed the entry ban case (regarding the second executive order) from its oral argument calendar:

[T]he potential disconnect between how courts answer and how society (or at least a particular segment of society) answers whether the order reflects anti-Muslim animus calls to mind another one of the great failures in constitutional law. This case is also on the list of what Richard Primus and Jamal Greene have called constitutional law’s “anti-canon.”

The case is Plessy v. Ferguson. Plessy upheld the theory of “separate-but-equal,” under which the equal protection clause allowed governments to mandate segregated, separate facilities for whites and blacks. Plessy rejected the argument “that the enforced separation of the two races stamps the colored race with a badge of inferiority.” Plessy declared that “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

One of Plessy’s most apparent failures is its inability to understand the social meaning of separate but equal, at least to African Americans. Related to that failure is another one—that Plessy reached a legal conclusion that failed to acknowledge, much less reflect, separate-but-equal’s actual meaning to the group of people it disparaged.

I take Judge Watson’s statement to be another piece of evidence that the social meaning of the latest executive order isn’t lost on people. And I think that’s probably a good thing to acknowledge, even if the order isn’t ultimately unlawful (a point I’m not analyzing in this post, and haven’t yet analyzed). It reminds the courts, at every level, of something that shouldn’t get lost in the noise of litigation.

*For Peter's updated analysis, see here.

*For an update + analysis of the Maryland decision, see here.

@LeahLitman


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