A federal judge in Washington state has imposed a temporary restraining order that prevents enforcement of President Donald Trump’s executive order banning residents from seven countries from entering the United States — either as refugees or as travelers. But whether that injunction will be upheld will be decided soon by the Ninth Circuit Court of Appeals, by reputation one of the most liberal appellate courts in the nation. That result will affect the roughly 15 other federal court challenges across the nation, some filed on behalf of specific individuals and some more broad-based.
All of these cases raise an array of constitutional objections to President Trump’s executive order, titled Protecting the Nation From Foreign Terrorist Entry Into the United States. The most common challenges are the Fifth Amendment’s protection against the denial of due process of law and extension of equal protection of the law, and the First Amendment’s protections against religious discrimination. Challengers also argue that there are statutory problems with the order, such as violations of the Immigration and Nationalization Act, Religious Freedom Restoration Act, and Administrative Procedure Act.
In the case brought by Washington state, now joined by Minnesota (with a pending request by Hawaii to join), Judge James L. Robart focused on the Equal Protection claim during the oral argument, returning to that basic issue several times. The judge also asked about the relevance of Trump’s repeated statements on the campaign trail that he sought a “Muslim ban.” In his restraining order, however, Robart only said that the state was likely to succeed, without specifying what grounds he thought were strongest.
This makes the arguments the Ninth Circuit will zero in on difficult to predict — not to mention the case’s outcome. Importantly, however, the Ninth Circuit at this point is ruling only on the narrow issue of whether the judge’s injunction should remain in place or be immediately dissolved. Indeed, there is a question as to whether the appellate court should even be stepping in at such an early stage, given that Judge Robart has not yet held a full hearing. However the Ninth Circuit decides, it’s highly likely that review from the United States Supreme Court will be sought.
Do refugees and foreign travelers even possess constitutional rights?
Underlying the litigation is the basic question of whether most of the people covered by the EO even possess “constitutional rights.” There is a misconception that the Constitution only applies to “citizens.” But since 1886, the United States Supreme Court has been pretty clear that constitutional protections for any “person” include noncitizens.
The noncitizens in the 1886 case Yick Wo v. Hopkins, Chinese nationals who were excluded from citizenship by statute, were clearly residents of California. In contrast, nonresidents seemed to be the main targets of Trump’s EO, but in the hours following its late Friday afternoon issuance, there were many conflicting reports and implementations of the EO to long-term permanent residents (green card holders), as well as persons who had different type of resident visas. The White House eventually clarified that it would not enforce the EO against green card holders, although even this remains uncertain.
Even people with little previous connection to the United States may be able to assert some rights when they are harmed by presidential action. Relying on precedent from the era of Yick Wo, the Supreme Court more recently held in Boumediene v. Bush that even when the president acts outside the borders — at Guantanamo Bay in Cuba, in that specific case — he lacks the “power to switch the Constitution on or off at will.” Even in the case of “enemy combatants,” the courts are not simply going to defer to the other branches of government when it comes to constitutional rights.
Another question is whether Washington, as a state, can sue on behalf of those subject to the executive ban. Washington argues that is has standing to do so because of its own proprietary interests (including its universities) and in its role as protector of its people and businesses (including Amazon and Microsoft). Harming such people in turn harms the state, goes the argument.
Interestingly, the best argument in Washington’s favor, on this score, is Texas v. United States, a case that the United States has just agreed to hear. The federal appellate court found the state of Texas had standing to challenge President Obama’s program giving “DREAMers” (undocumented persons who came to the United States as children) a modicum of protection. In a controversial holding, the court ruled that the cost to Texas of giving noncitizens drivers licenses (which it did not have to do) was sufficient cost to the state to give it a stake in the outcome of the case.
In his brief order, Judge Robarts clearly found that Washington had standing to bring the suit; he also implicitly found that the Constitution was applicable. But he was not explicit about which of the constitutional, or statutory, claims he based his conclusion on.
The fundamental principles that Washington state has invoked
From the court filings, including the briefs now submitted to the Ninth Circuit, the protections of religion, equal protection, and due process emerge as central. Under the First Amendment, there should be no laws “respecting an establishment of religion” or “prohibiting the free exercise” of religion. The 14th Amendment’s command that government shall not make or enforce laws which deny to any person “equal protection of the laws,” added to the Constitution after the Civil War, was made applicable to the federal government through the Fifth Amendment; those provisions are also likely to inform the Ninth Circuit’s decision. Additionally, the Fifth Amendment’s Due Process Clause protects people from having rights denied without sufficient legal process and even from having some fundamental rights denied, no matter the process.
For either the Religion and Equal Protection Clause arguments to gain purchase, judges will likely have to find that the EO intentionally targets Muslims. But that word barely appears in the almost 3,000 word EO. That 1886 case of Yick Wo, involving Chinese noncitizens, is again helpful. The Court pronounced that although a “law itself be fair on its face and impartial in appearance,” if it is “applied and administered by public authority with an evil eye and an unequal hand,” it will be evaluated accordingly.
In most contemporary situations, establishing the “evil eye” — an intent to discriminate — in a seemingly impartial law is an insurmountable hurdle. Lawmakers generally do not make statements targeting religious or other groups, and even if one legislator is so boorish, the legislature as a whole can disavow that legislator as an outlier.
Here, however, the EO is promulgated by the person of the president, who is repeatedly and widely on the record discussing the need for a Muslim ban. Additionally, the president’s intent is corroborated by at least one well-known person, Rudolph Giuliani, who claims to have offered advice in how to draft the EO so that the “Muslim ban” would not, in fact, look like a “Muslim ban.”
Moreover, the EO itself does address religion. In its subsection on resuming refugee claims, which the EO suspends for 120 days, it instructs the government to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.” In the seven nations covered by the EO, the majority religion is Islam. Thus, unless the government considers different sects of Islam as minority religions, only non-Muslims would be eligible for a claim of religious-based persecution.
A key question: how carefully are the administration’s policies tailored to its goals?
But the federal government argues that the EO should not be evaluated as a “Muslim ban” because it does not target all Muslim-majority nations but only seven. But, looked at another way, the idiosyncrasy of the list may actually hurt rather than help the EO defenders when it comes time for a different judicial test: an assessment of whether the EO is appropriately tailored to achieve its ends. For while the Constitution’s language tends toward the absolute — “make no law” — courts decide how closely the means chosen (the details of the law) relate to the government’s desired end — along with an assessment of how vital the government goal is. These standards vary, with government actions that make distinctions based on religion or race usually meriting the highest standard. In those cases, courts will demand a closely tailored fit to a compelling governmental purpose.
In the context of immigration, however, the court might embrace a slightly lesser standard, in which Congress and the executive branch generally receives some deference. The most deferential standard requires only a “reasonable” relationship to a legitimate government interest.
Whatever the standard, the place to start with this analysis is the text of the EO. This EO rehearses its own rationale as preventing another terrorist attack like the one that occurred on September 11, 2001. That is an undoubtedly vital goal. The problem arises, as it so often does, when considering the means chosen to accomplish this. The EO singles out seven specific nations — none of which were implicated in the 9/11 attacks. What’s more, the executive order fails to cover nations from which those attackers and subsequent attackers did originate, arguably suggesting that the order is only loosely connected to its goals.
Indeed, Washington state’s lawyers could argue that the order does not even pass a basic test of reasonableness. More than 1,000 State Department members signed an official “Dissent Cable” contending that the ban not only fails to achieve its aims but would be counterproductive. Likewise, in a Joint Declaration filed in the Ninth Circuit, a group of former national security, foreign policy, and intelligence officials including Madeline Albright, Janet Napolitano, John Kerry, and Leon Panetta conclude that there is “no national security purpose for a total bar on entry for aliens from the seven named countries.” Such a bar, they add, will in fact “harm the interests of the United States.” Although such decisions are rare, courts have struck down laws as flatly irrational on more than a few occasions.
Courts can also look beyond the text of the EO. If the Ninth Circuit decides the EO can be characterized as a Muslim ban in disguise, it may conclude that the government’s true interest is “animus” against a particular group. Animus is not a legitimate government interest, as the Court most recently held when declaring same-sex marriage bans unconstitutional.
Could the court decide that the administration’s defense is disingenuous?
Additionally, some have suggested that the choice of nations included in the ban may have something to do with President Trump’s business interests: nations where he (or his sons) have business ties are favored. That would suggest that the government’s interest in protecting citizens against terrorism was not its sole motivation. On a few occasions, the Supreme Court has rejected the interest the government has advanced to support its law, essentially concluding that the government was being disingenuous. One of the most famous examples is Loving v. Virginia (1967), in which the Court discounted Virginia’s stated reason for its anti-miscegenation law as preserving racial purity for all races; it held that the actual reason for criminalizing interracial marriage was white supremacy.
If a court were to take such a bold step and find that the actual reason was personal finances, this would overlap with a separate ongoing challenge to Trump’s presidency under the Emoluments Clause.
The Ninth Circuit may also focus on procedural due process claims, which guarantee that people receive advance notice and an opportunity to be heard before they are deprived of liberty or property. This was surely lacking in the EO’s immediate effect and implementation, amid the chaos in airports in the United States and internationally.
More generally, there has been trepidation about the very processes of the law itself. Certainly, many found it alarming that President Trump tweeted his disdain for the decision by referring to the “so-called judge,” and later stating: “If something happens blame him [the judge] and court system.” Such statements undermine what lawyers understand as the rule of law and our constitutional structure, which includes judicial review.
Therefore, the Trump administration’s enforcement of the restraining order — allowing refugees to travel once more — and its appeal of Judge Robart’s injunction were greeted with a sense of relief, especially by those opposed to the refugee ban. Court orders, appeals, and other arcane processes are business as usual in the law. So the appeal seemed to signal that at least some of the familiar rules applied, even as everyone acknowledged that we find ourselves in unfamiliar territory with the Trump administration.
The legal process has been reassuringly routine — so far
Not completely unfamiliar terrain, however. In the more conventional scenario, at least in recent decades, it is state officials who refuse to comply with the federal courts. In the infamous “Little Rock” case, Cooper v. Aaron, the governor of Arkansas asserted his ability to substitute his own interpretation of the Constitution in place of the United States Supreme Court’s finding in Brown v. Board of Education that racial segregation in public schools was unconstitutional. Importantly, the Court’s final authority, established since the 1803 case Marbury v. Madison, was backed by President Eisenhower, who issued his own EO directing the National Guard and other military to enforce the judicial order that Little Rock must integrate its schools.
Trump’s willingness to abide by the final legal decision, given his certainty about the rightness of his cause, would be an important test of his commitment to constitutionalism. Many are heartened by the Trump administration’s compliance with the injunction, while many are also alarmed by Trump’s personal statements deriding the courts by threatening blame should “something” happen. Should Trump outright refuse to comply, this would provoke a genuine constitutional crisis. Then we would be in truly uncharted waters.
Ruthann Robson is a professor at the City University of New York School of Law.
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