//  6/27/17  //  Commentary

Many close observers of the Court are still scratching their heads, trying to figure out just exactly what the Court did yesterday in Trump v. IRAP–and why.  With the luxury of a few hours to ponder the mysteries, here are some tentative speculations on the most commonly posed questions.

1. Why did the Court grant certiorari in a case it almost certainly will not decide?

As I’ve explained in a series of posts, the 90-day “entry ban” will expire before the Court hears argument in October.* Why, then, did the Court bother to grant the petitions in cases it almost certainly will not decide?  And, as Will Baude asks,”[w]hy didn’t the Court say more about the endgame it seems to have deliberately set up,” where “[i]t does rather seem as if the effect of today’s ruling is to schedule the case for an argument date that it will never reach”?

I think there might be a very simple, pragmatic answer to this question, one that the Court did not expressly offer for understandable reasons:  The Justices know full well what I and others have been stressing over the past couple of weeks–namely, that all of the action that matters will occur over the summer, i.e., during the next 90 days.  It appears that a majority of the Court also wanted to affirm the preliminary injunctions against the bans during that “review” period for the most part, but also wanted, for whatever reasons (see below), to trim back the injunctions so that they would not protect aliens who have not yet developed close ties to the United States.  The only way for the Court to be able to so tailor the preliminary injunctions, however, was to grant the cert. petitions, because the government had applied for stays “pending appeal.”  Without a live appeal–if cert. were denied–the Court would not have had any obvious authority to put its mark on the summer injunctions.  Hence, the pragmatic, immediate need to grant the petitions.  The stay application “tails,” in other words, wagged the cert. petition dogs.  Or so it seems from this vantage-point, anyway.

2.  Why did the Court permit the preliminary injunctions to run against some aliens unconnected to the plaintiffs?

The most vulnerable part of the preliminary injunctions was always their virtually unlimited scope:  They enjoined application of the entry ban not only to aliens who had some connection to the U.S. persons and state parties who were plaintiffs in the two cases, but to all aliens who are nationals of the six named countries, regardless of whether they have any alleged connection to the plaintiffs.  Justice Thomas, in his partial dissent, is right to note the ordinary rule that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” in the case.  Califano v. Yamasaki, 442 U. S. 682, 702 (1979) (emphasis added).  [An exception to this general rule might be found in court-of-appeals review of agency rulemaking:  The Administrative Procedure Act appears to empower such courts to “set aide” an agency rule, even in a case brought by a single plaintiff, upon a finding that the rule is arbitrary and capricious, unconstitutional, or “in excess of statutory jurisdiction.”  5 U.S.C. § 706(2)(C).  It’s not clear whether that APA authority applies in these cases.]

The U.S. Court of Appeals for the Fourth Circuit, in the IRAP case, reasoned that an across-the-board injunction is necessary to provide relief to the Muslim plaintiffs in that case under their Establishment Clause claim, because enforcement of the entry ban against anyone from the covered nations “would only serve to reinforce the ‘message’ that Plaintiffs ‘are outsiders, not full members of the political community.’”  It is, safe to say, extremely unlikely that the Supreme Court would eventually adopt this understanding of cognizable Establishment Clause injury, at least for purposes of standing; indeed, yesterday’s per curiam decision implicitly suggested that, as the Court sees it, any injury to the plaintiffs in the cases is fully remedied if aliens with whom they have specific connections are not barred from entering the United States.

What is striking about the per curiam opinion, therefore, is that the Court goes on to uphold the preliminary injunctions as applied to many aliens who have no connections with the U.S. persons and entities who are plaintiffs in the two cases.  Justice Thomas is right to wonder what’s going on there.  Why do the Chief Justice and five other Justices ratify injunctions that are, on their view, plainly broader than what is necessary to give full relief to the named plaintiffs?

Here’s one speculative answer:  Some or all of the Justices in the per curiam might well be uneasy about the increasing practice of district court judges to offer relief to nonparties that goes beyond what is necessary to protect the parties.  Even so, the Justices also know full well that there are many other cases in the pipeline–and many more, besides, that surely will be filed in the wake of the court of appeals’ decisions–that involve countless numbers of plaintiffs with connections to some aliens who are nationals of the six named countries.  Some of those cases might even involve certified classes of plaintiffs, and classwide relief.  Thus, even if the Court had cut back the two preliminary injunctions to be limited to aliens with connections to the plaintiffs in the two cases, it’d be inevitable that follow-on injunctions would proliferate, covering similarly situated aliens throughout the land.  Moreover, these cases are now in the Supreme Court, not the district courts.  And the ordinary (and appropriate) effect of a Supreme Court decision declaring a widespread government action to be unlawful is that the government stops engaging in that action across the board, even in the absence of a “nationwide” injunction.  Yesterday’s per curiam was, implicitly, the expression of at least a tentative view of the Court that the entry ban is unlawful–the sort of holding that ordinarily would result, at least at the merits stage, in a de facto categorical cessation of the unlawful government conduct.

For these reasons, when the Justices found themselves exercising what the per curiam opinion called “an equitable judgment of our own” in shaping the scope of interim relief, it is hardly surprising that they chose to uphold the injunction as applied not only to aliens with relationships to the plaintiffs themselves, but also to aliens having such connections to the vast array of other, “similarly situated” U.S.-person plaintiffs, actual and expected, across the nation.

3.  So why not all affected aliens?

OK, but once the Justices decided to sustain the interim relief as to many aliens with no connections to the plaintiffs in these two cases, why not simply allow the preliminary injunctions to remain in effect across the board, as applied to all affected nationals of the six countries?

Part of the answer to this question might simply be a function of the sorts of entry-ban challenges that have been filed thus far:  Whereas (as noted above) many U.S. persons have brought suits challenging the ban–suits in which injunctive relief is likely to be at issue shortly–the vast majority of the cases (perhaps all of them?) have not involved challenges brought by excluded aliens themselves.  The Justices might therefore have concluded that application of the injunctions to such aliens was not necessary to avoid any harm to the actual plaintiffs who are bringing these suits.

It’s obviously more than that, however.  If page 11 of the opinion is any indication, at least some Justices appear to be of the view that such aliens would be less likely to prevail if they brought such challenges.  (Although the Court does not expressly put the point in terms of “likelihood of success,” it seems clear that’s what’s at issue in the two key paragraphs.)  Yet the Court doesn’t ever quite explain why that’s the case.

The Court begins the passage in question by saying that denying entry to a foreign national abroad who has “no connection to the United States at all” “does not burden any American party by reason of that party’s relationship with the foreign national.”  That’s true–but so what?  After all, it certainly burdens non-American parties–and does so more directly than it harms the “American parties” here in the United States.

At the end of the passage in question, the Court states that extending the injunctions to such aliens injures U.S. interests “without alleviating obvious hardship to anyone else.”  Well, that’s “obviously” mistaken:  The excluded aliens suffer a “hardship” by virtue of the fact that they can’t enter the United States–and in the case of some of the aliens, such as Syrian refugees, that hardship might be very acute, even life-threatening.

A few sentences earlier, the Court writes more narrowly that the burdens on such aliens “are, at a minimum, a good deal less concrete than the hardships [on U.S. parties] identified by the courts below.”  That’s more than a bit cryptic, not to mention counterintuitive:  Say what one will about the hardship to the aliens, but at a minimum it seems to be more “concrete”–more direct and less speculative, anyway–than the harm to colleges and family members here in the U.S.

The key to understanding these two paragraphs, then, must lurk in this oddly phrased sentence, in the middle of the page 11 passage:  “[T]he courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself.”  This is, on the face of things, another non sequitur.  After all, the courts below did not conclude that exclusion wouldn’t impose any “legally relevant hardship” on the foreign nationals, either:  in the absence of any such alien plaintiffs, that simply wasn’t a question the courts addressed at all.  This sentence must, therefore, be understood to reflect the views of some of the Justices in the per curiam itself that the hardship suffered by the excluded aliens is not “legally relevant.”

It’s not obvious, however, what, exactly, the Court means by “not legally relevant.”  Surely, for instance, the excluded aliens–especially the refugees, but not limited to them–suffer an injury-in-fact that’s directly attributable to the entry ban, and that would be remedied by the district courts’ injunctions.  Thus there would be no apparent Article III barrier to their suit in federal court challenging the lawfulness of Section 2(c)’s entry ban.

What about the fact that–as the per curiam opinion reminds us–such an “unadmitted and nonresident alien . . . ha[s] no constitutional right of entry to this country” (quoting Kleindienst v. Mandel (1972))?  That, too, does not do much work.  The fact that such an alien does not have a constitutional “right of entry” does not mean hat the President is legally unconstrained in deciding whether to exclude him.   The Executive cannot, for example, exclude the alien without statutory authority to do so (as the Ninth Circuit held), in violation of a statute, or in transgression of the Constitution.  Why wouldn’t such entry prohibitions, in violation of the law, result in “legally relevant” harms?  [See also Adam’ Cox’s post yesterday, making a similar point and arguing that the Mandel statement should be understood simply to mean that denial of entry to such an alien does not deprive her of the sort of life, liberty, or property interest that triggers application of the Due Process Clause of the Fifth Amendment.]

Indeed, it’s probably even fair to say that such aliens have a “right” not to be excluded where the Executive acts without authority, or violates the structural constraint of the Establishment Clause, even if they do not have an abstract “right of entry” into the nation.   Cf. Bond v. United States, 564 U.S. 211, 220 (2011) (injury suffered by virtue of federal governmental action “taken in excess of the authority that [the Constitution] defines” is sufficient to establish Article III standing); id. at 222 (an “injured person” has “standing to object to a violation of a constitutional principle that allocates power within government”).  

What, then, could the Justices be getting at here, when they refer to harms that are not “legally relevant”?  I suspect what they have in mind is not a question of “constitutional right,” or injury-in-fact, but instead a suggestion that such aliens lack a statutory cause-of-action to complain that the Executive’s exclusion is ultra vires (i.e., not authorized by 8 U.S.C. 1182(f)) and/or that it violates the Constitution, and to seek an injunction (not damages) to bar such unlawful action.

As a general matter, a federal court has equitable authority, in a case brought by a plaintiff who has suffered an Article III injury-in-fact, to enjoin a federal officer who acts unconstitutionally, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 698-99 (1949), or “beyond the powers conferred upon him by the statute,” Santa Fe Pac. R. Co. v. Payne, 259 U.S. 197, 199 (1922), just as that court can also enjoin such unlawful action against state officers under Ex parte Young, 209 U.S. 123 (1908).  “What [the Court’s] cases demonstrate is that, ‘in a proper case, relief may be given in a court of equity … to prevent an injurious act by a public officer.’”  Armstrong v. Exceptional Child Center, 135 S. Ct. 1378, 1384 (2015) (quoting Carroll v. Safford, 3 How. 441, 463 (1845)).

Of course, this “power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations.”  Id. at 1385.  Thus, if Congress has demonstrated an “intent to foreclose” such equitable relief, it is not available, regardless of Article III standing.  Id.  

As it happens, the lower courts–especially the U.S. Court of Appeals for the D.C. Circuit–have long held that Congress has implicitly precluded the rights of aliens overseas to bring suits challenging consular visa denials.  This is commonly known as the “doctrine of consular nonreivewability.”  (See, for example, Judge Randolph’s 1999 opinion in Saavedra Bruno v. Albright.)  The Supreme Court has not yet opined on whether there is such congressional preclusion.  And there is some authority in the courts of appeals that Congress has not precluded an alien’s claim challenging a consul’s authority to act, rather than challenging a decision within the counsel’s discretion.  See, e.g.Patel v. Reno, 134 F.3d 929, 932 (9th Cir. as amended 1998).

More importantly, even if the consular nonreviewability doctrine is correct, it only governs consular visa denials, not entry decisions, as such.  And as for the latter, in 1996 Congress authorized some aliens to petition federal courts for review of the legality of their “removal” (exclusion), 8 U.S.C. 1252(a), but also foreclosed such judicial review for other aliens–in particular, those subject to “expedited” removal, see id. 1252(a)(2(A)(iii), 1225(b)(1)(B).  Perhaps the Court yesterday, when it wrote of some foreign nationals’ lack of “legally relevant” harms, intended to refer to, e.g., this latter class of aliens–those for whom Congress in 1996 precluded the right to seek judicial relief from removal.

Even as to that class of aliens, however, Congress’s suit-preclusion does not mean that the Executive may deny such aliens entry in violation of the Constitution, or without statutory authority.  And therefore it also does not follow that the defendants have demonstrated a likelihood of success in this case on the question of whether they may lawfully exclude such aliens from the United States pursuant to Section 2(c) of the Executive Order.

Imagine, for instance, that in this very case the Court eventually decides that the President acted ultra vires, i.e., outside his authority under Section 1182(f).  Is it plausible that, in the wake of such a holding, the Executive would continue to apply the entry ban to aliens without U.S. ties?  I don’t think so.  Such aliens will, in other words, benefit–their harms will be remedied–if and when Section 2(c) is declared invalid.  Accordingly, the Court’s conclusion that “[t]he equities” are very different as applied to cases in involving such foreign nationals, by virtue of a so-called absence of “legally relevant harm,” is certainly open to question.

4.  What is Justice Thomas talking about concerning likelihood of success on the merits?

In his partial dissent, Justice Thomas writes:  “I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.”

I honestly do not know what he is referring to.  Indeed, if anything, the Court’s refusal to stay the injunctions with respect to aliens with ties to U.S. persons–in contrast to its decision to stay the injunction as applied to other aliens overseas–suggests a view that the plaintiffs in such cases are likely to succeed on the merits.  More likely, the six Justices in the per curiam majority have not yet settled–not collectively, anyway–upon any firm views of the merits of the various statutory and constitutional claims in the case.  But whether or not that’s correct, there’s nothing in the majority opinion supporting Justice Thomas’s assumption of a Court majority with doubts about the merits of the case.

5.  Where’s the irreparable harm to the government (or to the United States)?

Also on page 11 of the per curiam opinion, the Court writes that “[t]he interest in preserving national security is ‘an urgent objective of the highest order.’”  That much is certainly true.  The Court then goes on, however, to also write:  “To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests.”

This sentence is, I think, the least persuasive part of the opinion.  To be sure, the injunction, as applied to such foreign nationals, does prevent the Government from pursuing a legitimate and compelling government interest (preserving national security) by enforcing Section 2(c) against that class of foreign nationals.  The Court does not explain, however, how the elimination of that single, discrete tool–the Section 2(c) entry ban for 90 days–injures the government’s ability to in fact preserve national security, let alone to do so “appreciably.”  And, as I’ve argued at length in earlier posts, the government has not yet come forward with any evidence to suggest that the injunction results in any such appreciable, or irreparable, harm to national security.  The Court was far too quick, and too credulous, here.

6.  What about the injunction against enforcement of the Section 6 refugee restrictions?

My posts on these cases have been devoted to the Section 2(c) entry ban.  I have not focused at all on the challenges to Executive Order’s 120-day suspension of refugee admissions (§ 6(a)) and its absolute suspension of entry of refugees in this fiscal year above a cap of 50,000 (§ 6(b)), even though those provisions might well have a far more profound and deleterious impact on aliens entering the United States than does the entry ban itself.  The Hawaii district court enjoined enforcement of those refugee provisions, too, and the Court of Appeals for the Ninth Circuit held that the President lacked statutory authority to promulgate them.

The per curiam Supreme Court yesterday preserved the preliminary injunctions against the Executive’s enforcement of those provisions, except (once again) as applied to refugees who lack a “bona fide relationship” with persons or entities in the United States.

I have not yet looked carefully at these refugee components of the Hawaii case.  I can, however, highly recommend Alex Aleinikoff’s post today.  Alex was until recently the Deputy High Commissioner in the Office of the United Nations High Commissioner for Refugees, and when it comes to refugees, he knows whereof he speaks–and, more importantly, much more than I do.  In his post, Alex reaches the perhaps surprising conclusion that “the Court’s ruling means that refugee admissions can proceed as normal—that is, that no refugee entering the U.S. through the regular resettlement program will be barred,” because “refugee resettlement agencies and their subcontracted local partners have a ‘bona fide relationship’ with refugees entering under the usual resettlement program.” He elaborates:

The vast majority of refugees resettled under the U.S. program are referred by UNHCR to offices of the Department of State overseas (some refugees with close family members in the U.S. may contact the State Department directly). The Department of Homeland Security then adjudicates an applicant’s claim, ensuring that they meet the necessary legal standards provided in U.S. law. For persons determined to be refugees, the State Department seeks a “sponsorship assurance” from one of the nine national resettlement organizations in the U.S. When refugees come to the U.S., they are welcomed by local partners of the national organizations which help them settle in a particular community. These non-governmental agencies—national and local—are funded to carry out these resettlement tasks. Denying entry to persons adjudicated to be refugees by DHS overseas and approved by the State Department for admission would inflict hardship on the resettlement agencies, both financially and expressively (undercutting their mission of supporting refugee resettlement in the U.S.).


In an earlier part of its decision dealing with the visa ban, the Court acted to close a loophole before clever lawyers and advocates could open it. In ruling that the injunction barring enforcement of the visa ban would continue to apply on behalf of persons with a bona fide relationship to person or entity in the United States, the Court stated that this would not be so for so “someone who enters into a relationship simply to avoid [the visa ban].” It then provided an example: “a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.” (P. 12.)


A similar example was not included in the refugee section of the opinion, perhaps because these kind of manufactured relationships are hard to imagine in the resettlement context. The United States government selects refugees for admission, not the resettling agencies. There is no way that the resettlement organizations can try to “bootstrap” admissions in the manner suggested by the Court.

There is thus a strong argument that the Court’s decision—although it purports to grant the government’s application for stays of the injunctions “in part”—should not affect the entry of refugees under the U.S. resettlement program in any respect.

If Alex is correct, then, notwithstanding all of the understandable attention that has been paid to the Section 2(c) entry ban, the most significant practical aspect of the Supreme Court’s decision yesterday might well have been the Court’s decision to effectively preclude the operation of Sections 6(a) and 6(b)–at least for the time being.

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