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Acting Solicitor General Jeffrey Wall and former Acting Solicitor General Neal Katyal faced off yesterday before a three-judge panel of the Ninth Circuit on the legality of President Trump’s revised March 6 travel ban order.
Plaintiff-appellees are the State of Hawaii and Dr. Ismail Elshikh, who claim that the travel ban exceeds the President's statutory authority under the Immigration and Nationality Act (INA) and violates the Due Process and Establishment Clauses. Ruling on the Establishment Clause issue only, on March 15 Hawaii Judge Derrick Watson entered a nationwide TRO, which was converted to a preliminary injunction on March 29.
Like last week’s argument on the lawfulness of the order before a 13-judge en banc Fourth Circuit, yesterday’s Ninth Circuit panel argument centered on the plaintiffs’ Establishment Clause claim. In substance, counsel tracked many of the same points presented last week, but as might be expected before a three-judge panel, the argument was much briefer, more relaxed, and less disjointed, with counsel accorded significantly more room to make out their prepared points.
Here’s a brief overview of some of the key colloquies, with a focus on the substantive differences between this case and the one under review in the Fourth Circuit.
Washington v. Trump
As Katyal emphasizes off the bat, this panel is bound by another Ninth Circuit panel’s per curiam ruling back in February denying the government's emergency motion for a stay of a preliminary injunction blocking enforcement of Trump's original travel ban order on due process grounds. According to Katyal, although the Washington v. Trump panel didn’t reach the Establishment Clause issue, its decision rejected the standard set forth in Kleindienst v. Mandel (1972), under which the executive branch's decision to exclude a foreign national need only be "facially legitimate and bona fide." Somewhat vaguely, the government disputes this reading on rebuttal: Wall argues that Washington does not resolve the question of the standard of review, and that to the extent the Ninth Circuit in that case asserted that Mandel does not apply to broad policy decisions, it is inconsistent with binding precedent like Fiallo v. Bell (1977).
Scope of the Injunction
Recall that at issue in the Fourth Circuit case was Maryland Judge Theodore Chuang’s nationwide preliminary injunction blocking enforcement of only Section 2(c) of the executive order, which imposes, with exceptions, a 90-day suspension on entry by foreign nationals from six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen. In contrast, before the Ninth Circuit case is Hawaii Judge Derrick Watson’s broader nationwide preliminary injunction, enjoining Sections 2 and 6 of the executive order in their entirety. This includes the 120-day suspension on refugee admission and the significantly lower annual refugee cap, along with certain provisions of the executive order directing certain cabinet secretaries to conduct an internal review of the procedures that should be used in the vetting of foreign nationals from the six targeted countries and refugees.
Judge Hawkins asks Katyal whether Judge Watson's injunction is overbroad, given it isn’t limited to those provisions of the executive order that suspend entry by foreign nationals and refugees, but instead also covers internal government deliberations. In response, Katyal emphasizes what the challenged provisions do not do: they do not provide the government from generally studying and conducting a worldwide review of its vetting and screening procedures; rather, the enjoined provisions of the order relating to internal government deliberations block only studies and assessments designed to carry out what Katyal argues is a discriminatory ban on Muslim entry.
8 U.S.C. § 1182 and § 1152
Again, a good portion of argument is devoted to the question of how the key statutory provisions should be read. That’s § 1182(f), which accords the President broad authority to “suspend the entry of all aliens or any class of aliens,” § 1152(a)(1)(A), which forbids discrimination based on nationality in the issuance of immigrant visas (though Katyal argues that this provision extends to non-immigrant visas), and § 1152(a)(1)(B), which authorizes the Secretary of State to “determine the procedures for the processing of immigrant visa applications.” Wall argues, as he did before the Fourth Circuit, that § 1152 is not a limitation on § 1182, period. In contrast, Katyal argues that these provisions must be read together and that the President’s powers are bounded by Congress’s broader statutory scheme.
Parties and Standing
As opposed to a wide-ranging group of individual and organizational plaintiffs, we have only two plaintiffs here, the state of Hawaii and Dr. Ismail Elshikh. Below, Judge Watson determined the state has standing based on monetary and intangible injuries to its university system ("nearly indistinguishable," according to the court, from the injuries found sufficient to confer standing in the Ninth Circuit's Washington v. Trump decision) and injury to its tourism industry. Judge Watson also ruled that Dr. Elshikh has standing as a Muslim-American stigmatized by the allegedly discriminatory message the executive order conveys about Muslims.
The panel does not push Katyal particularly hard on the question of whether stigmatization is a solid basis for Dr. Elshikh’s claim to standing, possibly in light of Ninth Circuit case law that supports a fairly capacious interpretation of the kind of government condemnation of religious views that confers standing. See, e.g., Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco (2010) (en banc).
Pre- and Post-Election Statements
Interestingly, Katyal seems to concede that Trump’s campaign statements alone would not by themselves provide the necessary support for a successful challenge to the executive order. Indicating he "wouldn't be standing here" if at issue were strictly campaign statements, Katyal points to two pieces of evidence that he considered indicative of anti-Muslim animus well into Trump's presidency: First, he highlights Trump's statement, on the signing of the executive order, that "we all know what that means." Second, he notes Trump's campaign statement calling for a complete shutdown of Muslim immigration, which is significant, according to Katyal, in that it was left on the President's official campaign site until the day before the Fourth Circuit's travel ban argument last week.
The Presumption of Regularity vs. Objective Observer
On rebuttal, Wall latches immediately onto Katyal’s seeming concession that the campaign statements were not by themselves enough to support anti-Muslim animus and sought to limit the relevant universe of statements to Trump’s statements while in office. And just as he did before the Fourth Circuit, Wall emphasizes that, at best, these in-office statements were ambiguous; certainly, they did not clearly convey discriminatory intent. In interpreting these ambiguous statements, the President is entitled to a presumption of regularity and thus a maximally charitable, rather than maximally hostile, judicial interpretation of his intent.
Katyal counters that this is not the appropriate standard: rather, the question is how the objective observer would view Trump’s statements. Here, in Katyal’s view, there is no question that the objective observer would understand Trump’s statements as indicating an intent to discriminate against Muslims.
Judge Paez asks whether the President is forever barred from issuing an executive order like this one in light of his allegedly discriminatory past statements. Clearly prepared for this question, Katyal says no and smoothly launches into two ways President Trump could escape the taint of his past statements: most notably, President Trump could simply disavow his past statements—which, Katyal stressed, the President had not done, notwithstanding Wall’s attempt to argue that he has distanced himself from them by clarifying his neutral intention—or point to changed factual circumstances.
It seems no travel ban argument is complete without reference to Korematsu case. Prodding Wall on his insistence that the Mandel standard applies, and that the courts are therefore barred from looking at the purpose motivating the executive branch's decisions to exclude certain aliens, Judge Paez asks him whether, under this reasoning, the executive order in Korematsu, directing the internment of all individuals of Japanese descent irrespective of citizenship, would pass muster. Clearly uncomfortable, Wall is quick to assert that he would not defend Korematsu, but doesn't provide a satisfying answer to Judge Paez, who is clearly searching for a limiting principle: specifically, for a principled distinction between not looking at executive intent in this case, as argued by the government, and being able to examine intent in a case like Korematsu.