Five Unanswered Questions From Trump v. Hawaii

The outcome in Trump v. Hawaii should not have been much of a surprise. In December, a majority of the Supreme Court allowed the entirety of the travel ban to go into effect temporarily. Over the past decade, when the Roberts Court has stayed a lower court’s ruling, it has almost always reversed its judgment. This case was no exception. Furthermore, the court resolved the legality of the presidential proclamation in its entirety. The justices did not settle on some sort of Solomonic split: for example, holding that the government could deny entry to aliens with non-immigrant visas but must admit aliens with immigrant visas. President Trump prevailed on all claims.

The court’s reasoning also should not come as a surprise, at least not for Lawfare readers who have followed my writing on the site. The majority opinion largely tracked the arguments I have made here over the past 18 months on at least nine discrete issues:

• First, standing was premised on a “concrete injury” based on family reunification, not a “spiritual and dignitary injury.”
• Second, there was no conflict between Section 1182(f) of the Immigration and Nationality Act, which allows the president to suspend entry to certain aliens, and Section 1152(a)(1)(a), which concerns the issuance of visas. These provisions “operate in different spheres.”
• Third, the former provision does not impose temporal or other limitations on the president’s authority; rather, it “exudes deference to the President in every clause.”
• Fourth, the travel ban does not run afoul of the non-delegation doctrine.
• Fifth, the court declined to apply “Establishment Clause precedents concerning laws and policies applied domestically.” Instead, the relevant test from Kleindienst v. Mandel and Kerry v. Din was “whether the policy is facially legitimate and bona fide.” Under this standard, there was no need to look “extend beyond the facial neutrality of the order.”
• Sixth, even assuming that the court can “look behind the face of the Proclamation to the extent of applying rational basis review,” the travel ban is “related to the Government’s stated objective to protect the country and improve vetting processes.”
• Seventh, because the travel ban “has a legitimate grounding in national security concerns, quite apart from any religious hostility,” notwithstanding the president’s tweets and other statements, the court “must accept that independent justification.”
• Eighth, in contrast to the Sotomayor dissent, the court afforded President Trump the “presumption of regularity.”
• Finally, the court concluded that the comparison between the travel ban and Korematsu is inapposite.

The majority opinion, however, leaves open at least five unanswered questions that the judiciary is likely to have to address in the near future.

First, what happens on remand with respect to discovery?

The government appealed Trump v. Hawaii to the Supreme Court after preliminary injunctions were issued by district courts in Hawaii and Maryland. The Hawaii decision concluded only that the plaintiffs were unlikely to succeed on the merits at this preliminary phase. It was not, and could not have been, a final judgment on the merits. The penultimate sentence of the chief justice’s opinion explains that “[t]he judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.”

On remand, therefore, the plaintiffs are within their rights to seek a summary judgment, and even a trial, about whether the proclamation is unlawful. It is unlikely that additional proceedings would alter the court’s statutory analysis, which involved pure questions of law. However, further proceedings could shed light on the “animus” question with respect to the Establishment Clause. Noah Feldman, relaying comments from his colleague Owen Fiss, points out that “the standard of proof of bias that the plaintiffs would have to meet could actually be lower at trial than in their action seeking a preliminary injunction.” They are correct. Even if no further evidence is added to the record, it is entirely foreseeable that the district courts could rule against President Trump once again. But the record is not sealed. Feldman adds that “the plaintiffs could seek discovery to uncover new evidence of Trump’s thinking, including, potentially, drafts of the executive order or memos about it.”

Without question, the plaintiffs will seek discovery. They always do. And the district courts very well may oblige such requests. Following the lead of Justice Stephen Breyer’s dissent, the district courts could probe whether, in fact, exemptions are being granted under the terms of the proclamation. (If the government wants to avoid another trip to the Supreme Court, it should implement the waiver policies in a liberal fashion.) Justice Anthony Kennedy’s concurring opinion, however, erects important guardrails for allowing discovery beyond official records, such as waiver requests. First, Justice Kennedy questions “[w]hether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs and in light of today’s decision, is a matter to be addressed in the first instance on remand.” It is not a given that any further proceedings would be “proper,” given the court’s definitive ruling, albeit on a threshold question about the preliminary injunction. Specifically, Justice Kennedy writes that this may be a case wherein the president has “discretion free from judicial scrutiny.” Second, Justice Kennedy explains that “even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.” Again, he reiterates the deference due to the executive with respect to discovery matters.

Indeed, this admonition sheds light on the Supreme Court’s unsigned order from December in In Re United States. In this case, Judge William Alsup of the Northern District of California ordered the government to produce internal documents about its decision to terminate the Deferred Action for Childhood Arrivals (DACA) policy. (To borrow from Feldman’s formulation, the plaintiffs sought “discovery to uncover new evidence of Trump’s thinking.”) The Supreme Court, however, issued a writ of mandamus, blocking the discovery request by a vote of 5 to 4. In dissent, Justice Breyer contended that “the Government’s arguments do not come close to carrying the heavy burden that the Government bears in seeking such extraordinary relief.” Based on Justice Kennedy’s concurring opinion in Trump v. Hawaii, the soon-to-be retired jurist likely agreed that the “heavy burden” was satisfied because of the risk of intruding onto the executive’s powers. Additionally, DACA—unlike the travel ban—does not implicate “the foreign affairs power of the Executive.” Yet, a majority of the court still intervened at an early juncture to halt intrusive discovery.

Shortly after Hawaii was decided, I tweeted that following remand, the Department of Justice should create a macro for Justice Kennedy’s opinion, because the department will have to cite it often: