Thursday, February 9, 2017

Pressure Testing the Separation of Powers - Trump's Travel Ban

This article analyzes President Trump's Executive Order titled "Protecting the Nation From Foreign Terrorist Entry into the United States" (the "EO"), the court cases challenging it, and the issues raised by it, including: 

(i) in the national security and immigration context, how do the separation of powers among the 3 branches of the Federal Government, as well as between the Federal Government and the states, work? 

(ii) to what extent can the President's national security and immigration decisions be reviewed by the courts?  

(iii) and, what is the legal standard of review that strikes the right balance between national security and the risk of terrorism on the one hand, and the value of immigration, free flow of travel, avoiding separation of families, and freedom from discrimination on the other?

The EO

On January 27, 2017, President Trump issued an EO that imposed (i) a 90 day travel ban regarding 7 majority Muslim countries (Syria, Iran, Iraq, Libya, Somalia, Sudan, and Yemen); and (ii) a ban on admission of refugees to the US - indefinitely from Syria and for 120 days from the other 6 countries. The EO also stated a preference for refugees who belong to a religious minority in the 7 countries.  The EO

On February 1, 2017, 5 days after the EO was signed, Donald F. McGahn, legal counsel to the President, published a memo to "clarify" that the travel ban was not intended to apply to the approximately 500,000 Lawful Permanent Residents in the US.  

On February 3, 2017, Judge James Robart, a US District Court Judge in Washington state, issued a temporary restraining order ("TRO") blocking the implementation of the President's EO travel ban.  TRO

President Trump and the US government appealed to the 9th Circuit Court of Appeals seeking to remove the TRO and begin to implement the EO, arguing that President Trump's policy decisions relating to immigration and national security in the EO are "unreviewable" by the courts.  

On February 9, a unanimous panel of 3 judges on the 9th Circuit Court of Appeals denied the President's motion, which left the TRO in place and the President prohibited from implementing the EO.  The 9th Circuit stated that the "balance of hardships" in the case weighed in favor of continuing the TRO. "The Government has pointed to no evidence that any alien from any of the countries named in the [EO] has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree."  In contrast, the 9th Circuit held, the EO was causing substantial harm.  9th Circuit Decision

President Trump could appeal the 9th Circuit's decision to the US Supreme Court, appeal to a larger panel of 9th circuit judges, or continue to defend the case as it is at an early stage and may proceed to discovery and eventually a trial on the merits.  Alternatively, President Trump could issue a new Executive Order that is more narrowly tailored and perhaps better supported.  

Background Regarding Immigration Terminology, Law and Policy

When considering the issues raised by the EO, it is helpful to be familiar with the following immigration-related terminology:

  • "Foreign Nationals" aka "Aliens" - are citizens of other countries who come to the US 
  • "Lawful Permanent Residents - aka "Green Card Holders" - are Foreign Nationals who have been lawfully approved to be in the US for an indefinite period, sometimes while seeking to become US citizens.  Green Card Holders cannot vote in US elections.  
  • "Visas" - travelers to the US must obtain visas, based on the purpose of the travel, before being allowed into the US - such visas can be for short term business travel or tourism, student visas, visits of family members, and work and other visas that may result in someone being in the US for years.
  • "Refugees" - are people who are forced to leave their home country due to war, persecution or disaster, and seek to come to US 
The US Citizenship and Immigration Service ("USCIS"), part of the Department of Homeland Security, is the Federal Agency that implements the immigration laws with the mission of balancing legal immigration and national security.  The USCIS vets applicants based established criteria and conducts background checks before issuing visas or approving entry of refugees - those existing processes can take years for any individual applicant.

Under Article II of the Constitution, the President is Commander-in-Chief and head of the Executive branch, which includes agencies such as the USCIS.  The Office of the President is uniquely positioned to address immigration, national security and terrorism.  Under the Immigration and Nationality Act ("INA"), 8 U.S.C. s 1101, Congress granted the President broad discretion to interpret and enforce immigration laws to promote national security.  

The Constitution and the INA also prohibit invidious discrimination on the basis of religion and national origin.  American society and the US economy heavily rely on immigration.  We are a nation of immigrants.  Because of the freedom, rule of law, safety, diversity and wealth of our society, the best and the brightest - and the most persistent - from around the world want to come here.  Those benefits have to be balanced against the threat of terrorism.  The President is tasked with striking that balance - provided he does not violate the Constitution and the law.  

Factual Background Regarding the Fallout From the EO

When, on January 27, the President signed the EO, without prior notice visas were revoked and immigrants from the 7 countries were banned from traveling to the US, and refugee programs suspended.  The impact of the EO was immediate and sweeping.

The EO impacted people who were seeking to come the US for the first time, but also 100s of 1000s of people who were already lawfully in the US, some for years or decades, with families, homes and jobs.  

Of the people already lawfully in the US, according to court records, the ban affected approximately (i) 500,000 Lawful Permanent Residents, (ii) 60,000 visa holders, and (iii) 780 people who happened to be traveling outside the US on January 27 when the ban was announced.  

For the people who happened to be traveling, hundreds were prevented from boarding airplanes returning the the US, others were denied entry at US airports when they arrived, and some were detained and told that they were being deported to their home countries, separated from family and loved ones in the US.

For those in the US, they essentially lost the right to travel outside the US - for example to attend a funeral, visit family, or to go on a business trip - since if they left, they would not be allowed to return.  

The Stated Justification for the EO

The EO states that its purpose is "to ensure the proper review and maximum utilization of

available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists."  Citing the 9/11 terrorist attacks, the EO further states that "numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes" since 9/11, and that deteriorating conditions in some countries make it more likely that terrorists will use any means possible to enter the US."  The EO

Based on court arguments, and President Trump's tweets, his main stated reasons for the EO are that:
  • Congress and the Obama administration agree that the 7 countries listed in the EO are some of the most dangerous places for terrorism in the world; 
  • the existing immigration vetting procedures are not sufficient to keep terrorists from the 7 countries out of the US; and
  • the threat of terrorism from immigrants of those countries is immediate.
There Have Been No Reported Terrorist Acts By Immigrants From the 7 Countries, and the US Government Provided No Evidence  

During the court arguments, US government lawyers stated there they could not identify any reported acts of terrorism in the US by any immigrants from the 7 countries in the 15 years since 9/11.   Oral Argument

The 9th Circuit asked if the US Government had any evidence to support the claim that there is an immediate threat, but the US Government did not provide any.  The court also noted that courts regularly receive classified information and have procedures to maintain its confidentiality.  9th Circuit Decision

Statements and Actions That Are Inconsistent With the Stated Justification

President Trump made the following statements that indicate he may have reasons for the travel ban other than an immediate terrorism threat:

  • On December 7, 2015, candidate Trump issued a press release calling for a "total and complete shutdown of Muslims entering the United States." Donald Trump Press Release
  • On June 14, 2016, he reiterated his promise to ban Muslims from the US.  
  • On August 15, 2016, he adjusted his public position on this issue of banning Muslim immigration, and called for "extreme vetting" of such immigrants and refugees.  NBC News 
  • During the January 27 signing ceremony, President Trump stated the the EO was to "establish[] new vetting measures to keep radical Islamic terrorists out of the [US]"; "We don't want them here." Fox News  
  • The 7 countries are Muslim majority and Christian minority (and minority religious groups get preference under the EO).  On the same day as the signing of the EO, President Trump - in an interview on the Christian Broadcasting Network - said that he would be giving a priority to Christian refugees because they had suffered more than others.  NY Times
  • On January 28, 2017, in a Fox News interview, Rudolf Giuliani stated that Trump asked him for a "Muslim ban" and instructed Mr. Giuliani to "show [Trump] the right way to do it legally."  Giuliani Interview
[Note:  Although the court is not permitted to insert its own policy judgment for the President's, I note that the clarification to exclude Green Card Holders from the travel ban calls into question President Trump's stated reason for the ban.  If there is a serious and immediate security risk coming from the 7 listed countries because the existing vetting procedures are insufficient, why would it be ok to allow 500,000 Green Card Holders from those countries be exempted from the ban?  Moreover, if the current vetting procedures are insufficient, why limit the application of the EO to the 7 countries.  For example, why not include countries where Foreign Nationals have in fact committed terrorist acts in the US, such as Saudi Arabia?

In addition, if the goal is to review and improve existing procedures, there is nothing stopping President Trump and the USCIS from doing that right now - the TRO limits the implementation of the travel ban, but the US Government doesn't need an EO to review its own procedures.]  

The Emergency Lawsuits Filed in MA, VA, IL, and NY

The impact of the EO, especially the detention and threat of deportation of people who happened to be traveling on January 27, led to airport protests and the filing of dozens of emergency lawsuits, including in Massachusetts, Virginia, Chicago, and New York.  Court Filings Collected by the U of MI Civil Rights Litigation Clearinghouse.  

For example, in the MA case - Louhghalam v Trump - Mr. Louhghalam, an Associate Professor at the University of MA  and Green Card Holder, was returning home to the US from an academic conference, when without access to legal counsel and without notice or a heading, he was detained at Boston Logan Airport, and told that he was going to be deported.   

A lawsuit was filed seeking a writ of habeas corpus (which is a rare court order based on the Constitutional prohibition against improper imprisonment), and an emergency temporary restraining order was issued by the court to allow Mr. Louhghalam to return to his home in the US, and to prevent further detention or deportation.  Court Filings in MA Case   See Also - Darweesh v. Trump - Iraqi national who had been granted political asylum in the US including because he worked as an interpreter for the US Army was detained at JFK airport and told he was going to be sent back to Iraq where his life was in danger.  Court Filings in the NYC Case

The State of WA v Trump Lawsuit 

The District Court Case 

On February 1, approximately 13 people impacted by the EO were detained at Seattle-Tacoma International Airport, but rather than those individuals bringing a lawsuit - which is what happened in other states - the State of WA sued President Trump and the US government based on the state's own injuries and injuries to residents of WA.  The WA v Trump Docket Containing All the Court Filings

The state of WA (later joined by Minnesota) (the "States" or "WA") alleged that the EO unconstitutionally stranded its residents abroad, split up families, restricted travel and damaged the States' economies and companies, including high tech companies such as Microsoft, who rely on immigrant workers with specialized technology skills.  The States also alleged that the EO was damaging State run universities - including the University of WA ("UW") - due to the impact on students and professors who are immigrants and who would not be able to attend UW and other state schools.  WA also alleged that the threat of terrorism by immigrants was a pretext, and that the EO was - at least in part - intended to promote a "Muslim ban" as the President had previously said he would do.


A TRO is an extraordinary judicial remedy because effectively the party seeking the TRO is asking for relief at the beginning of the case before there has been an opportunity for the parties to conduct discovery and a trial on the merits of the case.  

WA argued that the TRO was not burdensome here because it would preserve the status quo that existed before the EO was signed on January 27.  Alternatively, the Federal Government argued that the status quo was what existed after the EO was signed, and that it was extraordinary for a court to prevent a President from implementing an executive order, especially one that implicates national security.  

The legal standard for issuing a TRO is that the party seeking the TRO is (i) "likely to succeed on the merits" and ultimately win the case, (ii) would suffer "irreparable harm" if the order is not granted, (iii) the "balance of equities" favors a TRO, and (iv) that a TRO is in the "public interest."  

On February 3, Judge Robart issued the TRO blocking the EO travel ban on a nationwide basis, finding that the legal standard for a TRO had been met.  District Court TRO

The US Government's Defenses

The US government essentially is alleging 2 things - (i) that the courts are not entitled to review the President's EO, and (ii) that the States do not have standing to sue.  

The Standard of Review

The US government has asserted that - in the national security context - the President's decisions about immigration policy are not just subject to deference, they are unreviewable by the courts.   As long as the words on the page of the Executive Order do not express discrimination - if they are "facially valid" - they must be accepted without question, the US Government argued.  According to President Trump, under the INA, the President has "unreviewable authority" to suspend the admission of any class of aliens.  Opposition to TRO  

The State of WA countered that, the courts are one of 3 co-equal branches of government under the Constitution and they can and should review acts of the President - if there is evidence of bad faith and a violation of the Constitution - to determine if the actions of the President are bona fide.  WA Brief in Support of TRO

The 9th Circuit held that "[a]lthough our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. ...  As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (plurality opinion). "  9th Circuit Decision

[Note: the US Government made a tactical error by arguing that there is no legal review, rather than featuring the "rational basis" standard.  In the Louhghalam v Trump case discussed above, the MA district court first issued a TRO, but after the White House Counsel issued the "clarification", the court refused to continue the TRO, finding many of the claims at that point were moot (because several of the Plaintiffs were Green Card Holders).  With respect to some of the claims, the court held that there need only be a "rational basis" for the EO - and that President Trump had met that standard.  Court Filings in MA Case  However, the basis of the MA decision is now subject to question in light of the 9th Circuit's finding that the "clarification" was not binding - see below.]

Do the States Have the Right to Sue the Federal Government in This Case ("Standing")?

The Federal Government also asserts that the State of WA does not have a direct enough interest in the case to sue; rather, the suit should be brought, if at all, by affected individuals, as in other states.  

The justification for this position is based on separation of powers concepts under the Constitution.  Individual states cannot be free to sue the Federal Government every time they disagree with with US policy.  

The State of WA contends that states can sue when they are asserting their own financial interests (for example, the University of WA is run by the state and was economically damaged by the EO, including because students and professors from the 7 affected countries wouldn't be able to attend), or the states can sue by virtue of stepping into the shoes of and representing their state's residents.

The 9th Circuit found that at this point in the case, WA had made a sufficient showing of specific financial injury resulting from the EO to establish standing.  

The Legal Claims of the States

The states are essentially making 3 claims - (i) that the EO violated the due process rights of the affected individuals, (ii) that the EO was motivated in part by religious discrimination which violates the Constitution and (iii) that the EO was motivated in part by unlawful national origin discrimination which violates the INA.  

Due Process Claims

Under the 5th and 14th Amendments to the Constitution, no person shall be "deprived of life, liberty or property, without due process of law..."  Essentially, this means that the government cannot take away important rights without providing notice and a hearing.  Here such rights - including the rights to travel and to see loved ones - were taken away without due process.  

People who are lawfully in the US (or are seeking to lawfully return), but who are not US citizens, still enjoy these Constitutional protections.  However, people who are hoping to immigrate to the US, but have not yet come here, probably do not.

The US government argued that most of the affected people have no rights under the Constitution - relying on the the "clarification" that the EO doesn't apply to Green Card Holders.  The 9th Circuit rejected that argument, including because the court held that the White House Counsel's clarification is not binding, and did not amend the EO.  Thus, the EO applies to Lawful Permanent Residents of the US, and those people, as well as the visa holders in the US, are entitled to the protection of the Constitution.  9th Circuit Decision

Religious Discrimination Under the Establishment and Equal Protection Clauses

The Constitution prohibits discrimination on the basis of religion.  The 1st Amendment states that "Congress shall make no law respecting an establishment of religion... “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” In addition, the Fourteenth Amendment states that no person shall be deprived of the "equal protection of the laws."

WA alleges that President Trump's statements are evidence that the EO was motivated in part by anti-Muslim animus and a desire to favor Christian refugees over Muslim refugees. The 9th Circuit found that the courts are entitled to assess motives to determine if religious distinctions are based on illegal discrimination.   9th Circuit Decision 

Statutory Claims of National Origin Discrimination 

The INA - which is the same statute that gives the President discretion to decide immigration issues - also states: “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.”  8 U.S.C. § 1152(a)(1)(A)

WA State alleges that there is evidence that the President violated the INA because he was motivated in part to discriminate based on national origin.  "Before now, no President has invoked the [INA] to impose a categorical bar on admission based on a generalized (and unsupported) claim that some members of a class might engage in misconduct."  

The US government contends that despite the prohibition against national origin discrimination in the INA, the statute provides the President with the discretion to completely suspend entry of aliens from a county or countries (and that past Presidents have done so, including with respect to Cuba and other countries).  

The 9th Circuit's decision did not address the strength of the national origin discrimination claim at this point in case.  

Final Thoughts and the Tweets of the President

The WA v Trump case is just beginning and may (or may not) continue for many months.  The 9th Circuit Court of Appeals - perhaps not surprisingly - rejected the President's claim that merely alleging a risk of terrorism allows him to implement a sweeping immigration ban, that imposes significant costs to people and commerce, after openly making discriminatory comments, with no judicial review.

The President's decision to attack not just the outcome of the case, but the individual judges (his tweet referring to Judge Robart as a "so called judge") and the judicial system generally (his tweet about the judicial system being "political") is unwarranted and corrosive to US democracy, which relies on independent judges.  President Trump's Supreme Court nominee - Judge Gorsuch - openly expressed his disappointment at the President's attacks on the judiciary.  

If the case were to go to the Supreme Court, the media assumes the TRO will be upheld because there  are 4 generally liberal and 4 generally conservative justices currently on the court.  That assumption may be misplaced.  The liberal or conservative leanings of the justices tends to lead to expected outcomes with respect to certain social issues including abortion, but in this context - is it liberal or conservative to uphold the original intent of the 1st Amendment Establishment Clause?  The answer is neither - it is a question of Constitutional interpretation and balance.  Indeed, the 9th Circuit's decision was unanimously rendered by 3 judges - 2 appointed by Democratic Presidents, and 1 appointed by a Republican President.  Judges are human, but US judges are the best in the world at upholding the law and bending over backwards to remove personal biases and politics.  

The Constitution is being pressure tested by this President, and the Constitution has - so far... - withstood that pressure, aided by judges who are custodians of it, and the public who has demonstrated for the rights it conveys.  So far...   

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