Leah Litman // 7/11/17 //
Government lawyers are currently defending both the President’s “entry ban” and his continued financial stake in his various businesses. In this post, I wanted to tie those two defenses together, along the lines of a point that Jane Chong raised in her fascinating series of posts about the administration’s defenses in the emoluments litigation, which concerns the President’s continued stake in various businesses. (If you haven’t read her posts, you should; they are amazing.)
Writing about the administration’s recent filing in one of the emoluments cases, Jane highlighted a break between the administration’s position and the positions of administrations past. Whereas prior administrations had adopted a “functional, purpose-driven approach to the question of permissible benefits” that Presidents could permissibly receive under the Emoluments Clauses, the Trump administration had adopted “a different, far narrower interpretation” that had previously been offered by Trump’s personal lawyers. The administration’s interpretation of the Emoluments Clauses is that they bar “only the receipt of compensation for personal services and to the receipt of honors and gifts based on official position.”
From her careful comparison of the Trump administration’s positions and the positions taken by previous administration, Jane concluded:
Presently the American public is engaged in a vociferous debate over what it means to be “presidential”—but this conversation has so far been largely confined to assessing the appropriateness of the President’s startling tweets. I suggest that the public would be well served by a more wide-ranging discussion of what it really means to uphold the dignity of the country’s most powerful office. The president’s insistence on protecting his own personal financial interests using a highly exacting conception of constitutional provisions designed to protect the country may well serve as an example of “unpresidential” behavior of the highest import. What we are witnessing is legal reasoning befitting an ordinary private litigant, whose chief interest is protecting himself and his wealth, not conduct and a litigation strategy befitting the President of the United States.
In other words: The government lawyers’ decision to adopt a legal position that operated to Trump’s personal benefit in a way that appeared to be narrowly designed to do so raised questions about whether the administration’s “self-interested [legal] stance is, by itself, fundamentally at odds with the trust that the office [of the President] confers.”
Against this backdrop, consider the government’s litigating positions about the scope of the Supreme Court’s injunction in the entry ban cases. On the last day of the term, the Supreme Court limited the injunctions so that the entry ban, the suspension of the refugee program, and the refugee cap could be applied to “foreign nationals abroad who have no connection to the United States at all” and “foreign national[s] who lack any connection to this country.” But the Supreme Court opted to keep the injunctions against the entry ban, the suspension of the refugee program, and the refugee cap in place, at least for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” For persons claiming a “bona fide relationship with a person … in the United States,” the Court explained, “a close familial relationship is required.”
The Trump administration then issued a guidance about how it would implement the injunction:
“Close family” is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law,daughter-in-law, sibling, whether whole or half. This includes step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.
The administration later reversed its position to say that fiancés are close familial relationships. But it stuck with the rather dubious position that the relationships between grandparents and grandchildren are not close familial relationships.
That interpretation of the Court’s modified injunction has been widely panned by, well, every sensible person to have examined it. But when the Hawaii plaintiffs filed a motion in the district court to clarify the scope of the Supreme Court’s injunction, the administration defended it.
The parallels between the entry ban litigation and the emoluments litigation aren’t perfect. Jane compared the Trump administration’s position on the meaning of the emoluments clauses with the positions that prior administrations had taken, not with the “actual” or “correct” interpretation of those clauses. Here, there are no positions of prior administrations to compare alongside the Trump administration’s position—prior administrations haven’t been subject to an injunction of a similar scope, or an injunction written in similar terms as the one that the Trump administration is currently subject to (in part because prior administrations have not adopted similar policies under similar circumstances). The commentators evaluating the Trump administration’s position on the scope of the entry ban injunction are thus comparing Trump’s position with their own readings of the proper, or actual scope of the injunction, whereas Jane was evaluating the Trump administration’s positions on the Emoluments Clauses with the positions taken by prior administrations.
But the “unpresidential” nature of the Trump administration’s position on the entry ban injunction is still notable. The administration’s defense is to make a claim about what the Supreme Court may have “had in mind” (but of course never said), together with some analogies to provisions of immigration law that (a) have not been held invalid by any court (much less several courts), (b) are far removed from the policies, scope, and context of the provisions in the Trump administration’s order, and (c) do not track the government’s proposed definition of “close family relationships” anyways. The administration lawyers have thus been both forced and willing to adopt “legal reasoning befitting an ordinary private litigant.., not … a litigation strategy befitting the President of the United States.”
Government lawyers across Republican and Democratic administrations often rely on similar tropes of deference to the government, particularly deference to the executive. For example, the last case the Obama administration argued in the Supreme Court was Ziglar v. Abbasi. In Abbasi, the government’s position was that federal officials could not be sued for damages based on their detention of undocumented persons with no connection to terrorism (many of whom happened to be Muslim, Arab, or South Asian) for extended periods of time, in extremely harsh conditions. Of course, it is one thing to rely on a 30-year trend against damages actions against federal officials for their’ violations of the Constitution, and, in doing so, rely on the glut of Supreme Court cases establishing that trend. But it’s another to adopt an excruciatingly crabbed and senseless interpretation of the scope of the injunction that the Supreme Court crafted against one of the administration’s policies.
After President Trump was elected, Lawfare and Just Security ran many different pieces featuring many different commentators opining on the risks of serving in the Trump administration. I’m not sure which of the commentaries contains the explanation for what is happening in the emoluments and entry ban litigation (specifically about the scope of the injunction). All of the commentaries acknowledged some risk that individuals who chose to serve would lose their own sense of principles, or their own sense of the proper bounds of law or morality. I guess they were all right.