TLDR Up Front: Contrary to reporting Trump has neither “withdrawn” the Executive Order (EO) nor the case. But by lawyer-ing up and revising the EO he does improve his odds before facing an en banc hearing before the full 9th Circuit; if not court shop and face a different circuit altogether. However, it’s not clear whether any version acceptable to the President would survive strict scrutiny judicial review of Due Process, Equal Protection and RFRA tests. Although the initial appeals ruling settled many issues with finality, including the role of the courts in the legal process, it was weak in other areas such as the actual merits of the case. Fortunately, the Internet stepped up creating just as much confusion as the 9th did. Reviewing the legal cases, the arguments made and the core legal issues can serve as a guide for when Round 2 begins.
Full Context in the Back
It’s important to begin with that this is not the end. Despite reporting otherwise President Trump has not legally “withdrawn” the current Executive Order (EO) 13769. Rather the Department of Justice has filed stay with the 9th Circuit to allow them to revise the EO. During that stay EO 13769 remains under the Temporary Restraining Order (TRO) originally issued by the District Court Judge in Washington.(1)(2) So the case isn’t closed, just on hold. From a legal perspective we are where things were at 4:41pm EST 1/27/2017, the minute before President Trump signed EO13769.
How did we get here? It wasn’t easy. Below is an infographic of every single legal action relating to EO 13769 that I could find. From habeas corpus writs that represent anywhere from one-to-hundreds of individuals to the State of Washington’s lawsuit that ultimately led to Trump’s revision of the Executive Order. The graphic notionally locates each lawsuit within the time bracket it occurred, plots it against which of the five key EO directives it is seeking to impact and shows the result. It also includes a link for every case represented. I’ve included contact information on the graphic for updates on cases I may have missed. If, or more likely when, the new travel ban creates lawsuits I will continue to update the graphic.
Putting this together was Alt-Easy.
Clear? At this point many of the Writs of Habeus Corpus are dispensed of, usually by being dismissed after the detained party is released. None of the others are settled. By seeking a stay in the 9th the administration may be revising the EO and hoping it will get a more favorable hearing in another circuit first; or at least a competing viewpoint to balance against is a disastrous outcome in the panel finding. But what was argued in all these cases? The info graphic below is a cheat-sheet of who is arguing what because it’s easy to get mixed up at this point. This infographic will also serve as a guide for the rest of the analysis as I work through these arguments in three parts.
A 2nd InfoGraphic – oh happy day!
However, to understand how the courts are going to interpret these arguments first requires understanding judicial review. Have you ever read a seemingly mind-boggling court decision and thought “How could they!” Nine-out-of-ten times these reactions arise in part because there is a misunderstanding of the level of judicial review that was being applied to the case. This misunderstanding doesn’t preclude a ten-out-ten chance that even knowing the judicial standard a person may still think the ruling is asinine. But understanding why the justices ruled that way they did can sometimes be useful. There are three different levels of scrutiny and each scrutiny has a test which the government must overcome to prove it has met the acceptable legal standard to justify the infringement of that particular right in the particular way the law is alleged to have occurred. This means not all infringements of rights or liberties are weighed to the same level of scrutiny. This is really confusing to the lay person reading general media because reports on court decisions rarely bother to mention the level of judicial review applied, let alone the test the government had to prove to sustain it’s case given that level.
A 3rd InfoGraphic? What did you do with Tim?!?
If a case involves alleged infringements of rights or liberties – these are the reviews that will be used at the Federal level. In reading rulings, learning to spot telltale clues, references to “interests” or “rational basis” (as will be pointed out below) will give hints as to where Justices are thinking. I’m sure I’ll be using this infographic a lot because it comes up in nearly every court case that an InfoMullet is written on.
So we know the timeline of legal cases. We know the legal arguments being made, and we know the level of judicial review applied to those arguments. Let’s jump in.
In Part I, I want to just go over the main legal arguments that came up original in court cases around the country as individual plaintiffs made writs of habeas corpus to be released from detention or asked for emergency stays or temporary restraining orders. The plaintiff arguments and government responses would normally be separated out. But the government didn’t offer much of a defense so I’m just going to group these as Statutory and Constitutional arguments.
The Statutory arguments are the ones made that EO13769 violates the authorities President Trump has to work within as set by law. These aren’t anything you’ll ever see Hollywood make a movie over, there’s not nearly as many grand speeches to be had arguing the Administrative Procedures Act on notices and hearing times. But they can be just as important especially when rushed or inadequate vetting leads to technical errors that allow portions to be overturned on technicalities.
By far the most common statutory arguments by both Plaintiff’s and the Government are from sections of Title 8 of the United States Code (8 USC) which governs immigration law. The two sections, 1182 and 1152, both have provisions that seem to contradict one another so I’m going to put them one after the other below. From Section 1182:
“(f)Suspension of entry or imposition of restrictions by President
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. “ (3)
And from Section 1152:
“Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” (4)
So on the one hand it appears the President seems to have unilateral authority to do whatever he wants in regards to the entry of aliens or any class of aliens as long as its in the interests of the United States (SEC 1182). But he can’t make that determination based on race, sex, nationality, place of birth or place of residence. (SEC 1152).
How do we reconcile these? One method is to look at the language. SEC 1152 is prohibitive to any use of the criteria of nationality except to a handful of explicitly stated cases none of which apply to 1182, and it claims to govern the entirety of the “title”, which is 8 USC so would seem to include SEC 1182. We can find evidence of this interpretation when in 1995 a Federal Appeals Court blocked a State Department policy of deporting refugee seekers back to Hong Kong (emphasized for clarity):
“Section 1152 is a part of the Immigration and Nationality Act. This is an act committed to the administration of the Immigration and Naturalization Service and we review its interpretations deferentially under the standard of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). Even under that standard the Service’s present interpretation fails. Where Congress has unambiguously expressed its intent, we need go no further. Here, Congress has unambiguously directed that no nationality-based discrimination shall occur. There is no room for the Service’s interpretation proffered by the Department.” (5)
The implication is that the statutory language is clear – Congress prohibited by statute certain authorities within 8 USC, one of them being using nationality to determine an immigration policy, SEC 1182 language not withstanding. The CATO Institute in analyzing the current travel ban points out that not only is the language clear – but the chronology of passage of the sections enhances that clarity. The unilateral authority of the President to ban travel (SEC 1182) was passed in the Immigration & Nationality Act of 1952. But the language restricting that authority to not be on the basis of nationality (SEC 1152) was passed in the Immigration & Nationality Act of 1965. It’s hard to make the case that Congress wasn’t aware of the current specifics of 8 USC at the time and didn’t intend for the phrase “of this title” not to include confining SEC 1182. (6)
Administrative Procedure Act
The next statutory complaint that showed up in nearly every case I looked at was that the EO13769 violates the Administrative & Procedures Act. Specifically in 5 USC § 553 and 5 USC § 702. The first law is the general one all government agencies have to go through before effecting a change of regulation and can be found here. (7) These procedures normally involve notices of hearings, times of hearing, opportunity to comment – the normal bureaucratic sausage making. Because Trump signed the EO at 4:41pm EST on 1/27 and it went into effect at 4:42pm EST on 1/28 all of these normal regulatory change processes were completely bypassed. The impact of this is passengers who were already in the air, having legally departed under valid visas from their points of departure, would find themselves detained upon arrival through no fault of their own. The argument being that had proper notice been given these passengers might not have traveled.
The second argument is a bit more interesting. 5 USC § 702’s opening line states: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” (8)
Note how the law states “a person”, and not “a citizen”, or a “lawful resident” or even “a person currently within the lawful jurisdiction of the United States.” This portion of the APA is grants standing to anyone harmed by an agency action. There have been many questions of how alien travelers who have not even left their home countries have “legal rights” in the US. My guess is that this statute is the reason.
Religious Freedom & Restoration Act
After INA and APA, the next most common statutory argument the plaintiffs brought up was the Religious Freedom & Restoration Act (RFRA). Yes – the most recent boogeyman of progressive liberals everywhere is a key law in fighting the Trump travel bans. Ironic isn’t it?
However, this case illustrates why these legal protections are not so clear cut as one might think – and calling for their removal might hurt more than help in the long run. As the chart of judicial review indicates above, the hardest scrutiny a government will face in defending a law that violates a right is called “strict scrutiny.” RFRA is a very simple and short law, which is surprising for Congress – passed during President Clinton’s administration.(9) All it really does is clarify that any case involving the infringement on the Free Exercise clause of the First Amendment will, as a matter of law, always be reviewed by the strict scrutiny level of judicial review. This leaves very little wiggle room for judges to evaluate a Free Exercise infringement under a lesser standard. This also means that if a case against the travel ban is qualified as one of a violation of Free Exercise of Religion, the government needs to show it had a compelling government interest, it used narrowly tailored means and the least restrictive options available. EO13769 clearly fails on the latter two tests , and thus would fail under a strict scrutiny review. The bigger argument won’t be whether EO13679 can pass strict scrutiny – it can’t – but rather whether EO13679 violates the Free Exercise and Due Process clauses in the first place.
UN Convention Against Torture
In two cases Darweesh et al v. Trump and State of Washington et al v. Trump the plaintiffs argued that EO13769 violated the UN Convention against Torture. In that Convention, of which the US is a signatory, Article 3 states:
“1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (10)
The argument is that as a President, the Trump administration is bound by existing US treaties unless he acts through Congress to change them. However, he is not bound if the Treaty themselves is un-Constitutional. This is the nuance typically lost on those decrying the internationalization of the courts. They often mistake the current President for the whole of the United States. There is a serious flaw in this analysis however. The United States is the People, which through the framework of the Constitution and all past President’s, Congresses, Courts and States have utilized their independent authorities and been limited by the checks & balances to arrive at this point. So any current President is no more able to unilaterally disregard that past history than a CEO of a large corporation is able to unilaterally to ignore the past legal history of the corporation they lead. A CEO cannot cancel or alter contracts the corporation has previously and lawfully agreed to without consultation of the board (Congress), the other parties of the contracts (other nations), some of which may involve legal proceedings (Courts) and ultimately responsible to the shareholders (the People.)
That is pretty much the case with the United States and Treaties. We are bound to abide by them until the President and Congress jointly either abandon or renegotiate it. This is a fairly narrow objection however, it only comes up in cases where asylum and fear of torture upon return to the specific country is legitimate. If the detainees were returned to a third-country, it wouldn’t be able to be argued.
Foreign Reforms & Restructuring Act
There is only a single reference to this act in any of the cases. However, that case was Washington State v. Trump so it might matter. However, after quite a bit of searching, I can’t even find if or where such an act exists. I find reference to it in the legislative record from the 1990’s, having been brought to the floor of Congress, but not passed. And then subsequently proposed for inclusion in an omnibus spending bill. But given the language of that bill I’m not sure how it would apply. So I admit defeat here, if anyone can figure out where or how this applies, or if it’s a mistake, pipe up in the comments below.
Constitutional arguments are trickier than Statutory arguments. In a Constitutional argument, a law may seem to grant authorities to President Trump for the directives in EO13769. But if the law itself is un-Constitutional, then the Court is equally comfortable tossing out the Executive Order as well as the law upon whose authority it relies. Constitutional arguments also tend to rise to strict scrutiny level as they invoke “fundamental rights.” However, for the Plaintiff, there also tends to be more case law defining what is, and is not, a valid Constitutional argument.
The first Constitutional argument is that the ban violates the Free Exercise Clause of the 1st Amendment which reads (emphasis added for application to this situation):
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (1st Amendment)
If a Muslim resident, or otherwise valid traveler, is prohibited from entering the country for no other reason than their religion that would be a prohibition on the free exercise of their religion. There is a legitimate argument on whether an Executive Order that is not explicitly anti-religious in its actual text can be considered anti-religious in its functional application. After all there are many, most actually, Muslim-majority countries not included in the ban as well as non-Muslim populations from the identified seven countries included in the ban. However, the contemporary statements of administration officials – as well as Trump himself, under certain circumstances may be admissible. And it’s never been the standard that the burden of proof is to prove that an action impedes the Free Exercise of an entire class of individual, but rather the Free Exercise of Religion of any one individual is sufficient.
For those wondering about the text which seemingly only limits “Congress” and “laws” this clause has always been understood to: “press”— that implicitly applied against all federal branches (not just Congress) and all federal actions (not just laws).” (11)
The next Constitutional argument made by plaintiffs was to invoke the Due Process clause of the 5th Amendment which reads (emphasis added for application to this situation):
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (5th Amendment)
This one is pretty straight forward and prompted the most immediate back pedaling by the Trump administration even during the first weekend of implementation. One cannot just simply detain a “person” without due process, access to lawyers etc. That violates both this Due Process Clause in the 5th (which requires at least a warrant or reasonable suspicion) and the Suspension Clause: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (ART I SEC9). To the extent green-card holding legal residents were detained, Trump’s administration stepped in the merde up to the top of his bouffant.
But what of non-residents? These are not citizens, nor legal residents – they are alien visitors? What “rights” do they have within US courts?
This is where the phrasing chosen by the framers of the Constitution is very important. A Citizen, a person and the People are three very different terms with different meanings. And although those terms can be hotly debated, and I reserve the right for future disagreement on specifics, here I’ll simply to defer to the master on Constitutional scholarship Reed:
“To see the key people/ person distinction another way, let’s recall that (nonslave) women in 1787 had various rights as “persons” (such as freedom of worship and the entitlement to due process) but did not directly participate in the acts of “the people.” Thus, eighteenth-century women did not vote for constitutional conventions or for Congress, nor did they serve on juries, nor were they part of the people/ militia at the heart of the Second Amendment. Elsewhere in the Bill of Rights, the phrase “the people” generally gestured toward voters as the core rights-holders, even as the phrase in certain contexts plainly radiated beyond the core group.”(12)
Citizens possess the entirety of privileges and immunities offered by the Constitution. Persons are a sub-set which only gain the protections mentioned where that term is specifically used. And “the People” is of neither a purely States Right nor Individualistic meaning (as Reed states they have evolved) but a meaning of duty or privilege of individuals participating in collective action such as a convention, election, jury or militia.
This is why even even if these were people crossing the borders illegally they would still be entitled to every “right” in the Constitution preceded by the word “person.” That this construction exists within the Constitution can be be argued as a good or a bad thing – but it is very hard to argue it does not exist. However, and this is a big however, these “person rights” of due process do not apply to persons who are not within the jurisdiction of the United States, or territorial possessions unless under special circumstances such as being under US control (see Hamdan v. Rumsfeld.)
In the case of EO13769 however, even in circumstances of persons not in the US, the statutory conditions of the Administrative & Procedures Act found in 5 USC § 702 mentioned above can grant standing to any person harmed, regardless of location, by a US agency action. Though I’m not a 100% on that. If you know better improve my thinking below in the comments.
National Security Executive Orders cannot be reviewed by Courts
What was surprising at the District Court level was how little the government defended itself Constitutionally. Tithe Constitutional argument being advanced by the US District Attorneys is a broad claim that EO13769 cannot be reviewed by the courts. This claim arises from the traditional deference of the Courts to the Executive on matters of National Security and the claim by the Executive that the President holds ultimate authority for immigration. Though these arguments will be dealt with more thoroughly in Parts II and III respectively its clear this defiance begins at the top. (13) But it also permeates down through all levels. Even after the 9th rejected these arguments, in a Virginia case the District Court Judge Brinkema appealed to a US Attorney that (emphasis added):
“The courts have been begging you to give some information supporting a rational justifications [that the targeted countries pose] a unique threat,” the judge said. “You haven’t given us any evidence whatsoever.” Justice Department attorneys have argued that the national security issues involved in Trump’s decision should not be the province of the courts, but Brinkema — who handled the trial of Sept. 11 plotter Zacarias Moussaoui — dismissed that contention. “We have national security matters presented to us all the time. The courts are cleared” to handle them, the judge said. “I don’t have a scintilla of evidence from the government.”(14)
Justice Brinkema threw the government a gavel-shaped bone here. She’s fishing for a rational basis justification for the travel bans, the lowest level of judicial scrutiny possible. This sets a very low bar for the government to cross which, if unable, they couldn’t even get off the starting line. This refrain was heard elsewhere was well, including in Washington State v. Trump in the Western District where the US Attorney argued that rational basis need not be considered by the court because it was sufficient for the Executive to simply state they had rational basis, not provide it. But the governments failure to provide any evidence justifying this order in court, even a secret court proceeding to protect means & methods left these directives in a precarious position. My hunch, given the lack of coordination and vetting of the EO13769 rumored is that there is no data to support – because such data would come from the very intelligence communities that Trump has slammed repeatedly. Namely the CIA, DIA, FBI and NSA. Being only able to argue that a President’s Executive Orders relating to national security could not be subject to judicial review, the government attorneys gamely swung at balls they knew they couldn’t hit. And indeed they struck out 0-3 at the top of the 9th. (as Part II will demonstrate.)
Throughout this legal wrangling, even with EO13769 on TRO there is still an ongoing human impact. In addition to travel disruptions, plan adjustments and overall uncertainty of valid visa holders – refugees are having to make at times drastic decisions. One of the lesser known parts of international law is a Treaty between the United States and Canada called the Safe Third Country Agreement. (15)
Under this agreement persons seeking refugee protection must make a claim in the first country they arrive in, either the United States or Canada. There are exceptions for family members, unaccompanied minors etc. What this means in practice is if an asylum seeker arrives in the US, but wants to declare in Canada, they must be smuggled across the border as an undocumented illegal immigrant – and upon arrival in Canada “declare” themselves an asylum seeker.
This has always occurred to some extent. However as the chart below the incidents of this practice have dramatically increased over the last few years, and spiked considerably during the elections and especially after the Trump victory. Although I do not have numbers for January there are reports of multiple-hundreds of refugee asylum seekers braving very dangerous winter conditions to cross into Canadian border towns – risking frostbite, hypothermia and exposure; in order to avoid having to “declare for asylum” in the United States.
Perhaps the two most disgraceful lines you’ll see today.
Whether or not such border illegal border crossings are a valid reaction to fears of a Trump administration or are even a specific reaction to his election (rather than calculated risk that better circumstances lie in Canada regardless of who won the election) is impossible for a third-party to guess. It is clearly the perception of these asylum seekers looking for refugee status coming from war-torn countries that their best chances will no longer lie in the United States, but in Canada. And they are willing to risk their lives to do so.
In Part II I’ll move up the food chain to look at the arguments made before the 9th Circuit Court of Appeals(19), and how those arguments were ruled upon by the panel of three judges. This will serve as a good preview to the eventual en banc of the 9th or whichever circuit it occurs in (if the US intends this stay to court-shop a more favorable circuit). The 9th does a decent job of rebutting some of the weakest arguments, such as unreviewability. However, it does not do as good a job on reviewing the actual merits of the case. That will be left for Part III – which may also include a review of the new Executive Order depending on when its released.
(11) Amar, Akhil Reed. America’s Constitution: A Biography (Kindle Locations 6318-6319). Random House Publishing Group. Kindle Edition.
(12) ibid (Kindle Locations 6485-6490).