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Since January 2017, over two dozen judges have heard oral arguments concerning the legality of President Trump’s travel bans. At the outset, I was struck by how unprepared the government seemed, how contrived the written opinions were, and how unscathed the challengers’ arguments went. Tempora mutantur. But in arguments before the Fourth Circuit last week and the Ninth Circuit yesterday, a new phase of the litigation has opened up. The government’s arguments have become sharper, the judges have become more informed, and the weaknesses of the challengers’ case have been laid bare. I don’t expect the government to prevail in either circuit, but the foundation for a victory at the Supreme Court is already assembled.
The reasoning is straightforward. First, despite the many briefs chronicling President Trump’s indefensible campaign statements, pre-inauguration ramblings should not be considered in determining whether the stated national security justification for the order constitutes pretext. Second, a handful of ambiguous post-inauguration statements, including Trump’s declaration that “we all know what that means” on signing the executive order, will be insufficient to demonstrate to an “objective observer” an improper motive under Lemon v. Kurtzman (1971), Kleindienst v. Mandel (1972), or Kerry v. Din (2015). Third, confronted with a crumbling constitutional case, the statutory non-discrimination provision 8 U.S.C. § 1152(a), which applies only to immigrant visas, will be insufficient to justify the global injunction. Finally, despite this President’s unprecedented behavior, the courts’ application of the “presumption of regularity” will result in the survival of this temporary measure.
Stumping the Stump Speeches
Perhaps the most refreshing aspect of the oral arguments in both the Fourth and Ninth Circuits was the growing consensus that the Presidents’ campaign statements are (at a minimum) less probative than statements made following the inauguration. After Neal Katyal, who argued on behalf of Hawaii and Dr. Ismail Elshikh, listed several of the more egregious campaign statements, Judge Richard Paez interjected. “Those statements are profound,” he said, but “it is a little bit concerning that those statements took place during the midst of a highly contentious campaign” (34:30). He added later, “If we don’t consider the campaign statements, do you still prevail?” This question dropped like a ton of bricks, in light of the fact that several district court judges showed no hesitation to rely on such statements.
Neal Katyal answered in the affirmative, but worked very hard to connect the pre-inauguration statements with the post-inauguration actions. On several occasions, he noted that “the President rekindled those statements through his actions as President.” (35:00). Katyal brought up several examples of this rekindling.
First, he cited the Trump campaign’s 2015 press release about the Muslim ban, which remained on the campaign website after Trump took office and “just happened to disappear moments before 4th Circuit arguments last week.” These statements, Katyal explained, would demonstrate to an “objective observer” that Trump acted with an improper motive. In my view, this is a damned-if-you-do-damned-if-you-don’t argument. Last week, the ACLU castigated Trump for keeping the statement online. Today, Hawaii castigated Trump for removing it. In any event, this is best viewed as a campaign statement, which Trump has abandoned. Removing it is not a rekindling.
Second, Katyal cites statements Trump made about Christian refugee applicants. For example, Trump said “it is a lot easier for Muslims to immigrate than Christian refugees from the Middle East.” He also said with respect to refugees, he is “going to be helping the Christians big league.” That is big league, not bigly. Katyal concluded that these remarks are “an establishment of a disfavored religion, Islam.” But here, Trump was not discussing a preference to deny entry to Muslims; rather, he stated that he wanted to help Christians access to refugee programs. Indeed, under the first executive order, minority Christians in majority-Muslim nations were given preferential treatment. This may sound jarring, but much of our asylum law is premised on religious persecution. These statements bear on the order only indirectly, and the panel did not seem particularly interested here either.
Third, Katyal cited Trump’s statement from the evening the Hawaii district court enjoined the revised policy, in which he said:
Moments ago, I learned that a district judge in Hawaii, part of the much overturned 9th Circuit, just blocked our executive order. This is a watered down version of the first one. And let me tell you something. I think we ought to go back to the first one, and go all the way, which is what I wanted to do in the first place.
Katyal suggested “all the way” referred to the campaign-trail Muslim ban. This statement is, as with most things Trump said, ambiguous. Does “first place” refer to the original Muslim ban, or to the first order? Here too, the panel did not seem particularly interested in this comment, which came after the revised policy was promulgated.
Katyal’s most important example of Trump’s discriminatory purpose was a six-word, seemingly off-the-cuff statement Trump made upon issuing the first executive order. Acting Solicitor General Jeff Wall pointed out that this is “the only post-inauguration statement they have,” and added later that Hawaii is “down to a handful of statements, and the only one that directly concerns this order is what the President said when he signed the first one.”
As Katyal explained it, Trump “read the title of the executive order, looked up at the camera, and said ‘we all know what that means.’ If it was clear from the title what it meant, he wouldn’t have had to say it. It’s a reference to something else.” Something else, the implication goes, being the Muslim ban. Katyal found it strange that the President would have opined on the title of the order. Yet, moments earlier, he referred back to the title of the first executive order he signed, stating “That’s a big statement.” Trumpisms are not reducible to the usual rules of grammar and syntax.
More importantly, an objective observer would not see “something else.” In my post addressing the oral arguments before the Fourth Circuit, I urged anyone in doubt to not only read these statements, but to watch the full thirteen-minute video of the order’s signing.
After talking about the need to fight radical Islamic terrorism, Trump signed the order in front of a room full of military brass, with the recently-confirmed Secretary of State standing over his shoulder. Neal Katyal asked, “What would an objective observer view these statements as?” I think the answer is exactly what Trump said it meant: keeping terrorists out of the United States. Last week, I wrote:
It is painfully obvious what Trump meant by "that." Speaking in the Pentagon, after swearing in his Secretary of Defense, with the Vice President standing over his shoulder, the President was speaking about “keep[ing] radical Islamic terrorists out of the United States of America.” The premise that the President’s use of “that,” was a wink and a nod to bigotry is an illustration of motivated reasoning.
To make this point even more explicitly, the Secretary of Defense had just taken an oath to support and defend the Constitution, as did the Vice President, as did every officer in the room. It was broadcasted on live television. Does anyone plausibly think that anyone in that room could have conceivably thought the President was secretly signaling an outright ban on Muslims? It absolutely strains credulity. Under McCreary County (which I do not think even applies), this remark passes the “objective observer” test with flying colors. An objective observer could not possibly look at this ceremony as a whole and, on the basis of the word that, connect the initial executive order to Trump’s campaign promise in 2015. The proverbial missing link is simply missing.
Yesterday, Wall made a very similar argument: “I’d encourage the court to go back and look at the ceremony in which the President signed that executive order.” Not just read it, but look at it. What does “that” mean? Wall explained that three minutes before signing the order, “in the presence of the newly sworn in Secretary of Defense,” Trump said, “I am signing this order because I want to increase the vetting procedures for radical Islamic terrorist groups.” Wall continued, “Three minutes later, when he signed the order, he makes the six word off-hand comment. It is clear in context, and I think it is as least within the presumption of regularity, that we ought to afford to the head of a coordinate branch, what he is talking about is terrorist group, not all Muslims everywhere in the world. There just isn’t enough in this record to get us to bad faith under Din” (1:07:00).
Judge Hawkins seemed to agree with the government on the significance of these six words: “If you exclude the campaign statements, if you look at the statements around the time of the issuance of the second executive order, including ‘you know what this [sic] means,’ that there is one way to read it, it’s bad, another way to read it, it’s good, why shouldn’t we be deferential to the office of the President of the United States on such an issue?” (49:00).
Katyal replied, “that is the million-dollar question,” and turned back to what an “objective observer” would think, not what “the President thinks.” He then listed a number of amicus briefs supporting the challengers as illustrations of what objective observer would think. But, to be blunt, are any amicus briefs “objective”? By definition, they took a side in this case. Who can possibly be “objective” in the face of such a polarizing President? Indeed, many of the groups Katyal listed can be viewed as members of “The Resistance,” which has sworn to stop Donald Trump at all levels. These observers are far from “objective.”
Statutory Relief, Redux
Beyond the constitutional claims, there are two relevant statutory provisions at issue.
8 U.S.C. § 1182(f) gives the President the power to deny entry to certain classes of aliens:
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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
8 U.S.C. § 1152(a) prohibits the government from discriminating based on nationalities with respect to the issuance of immigrant visas:
(A) 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.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.
Since the outset of this litigation, I have written that these statutes are not in tension (See Parts I, II, III, and IV),. The former provision bars entry into the United States, and the latter statute bars the issuance of visas.
Yesterday, SG Wall similarly explained the interaction between these two statutes. First, he said “1182 applies to entry by its terms, [and] nothing in 1152, which concerns issuance of immigrant visas, limits 1182.” (15:40). Second, he added that there is no way to read the power to limit visas under 1152 [as a power] to limit his entry power under 1182 (17:50). Third, even if the government was required to issue visas to these nationals, it could still deny entry. Citing long-standing State Department policy (which must be entitled to some form of deference), Wall said the government has historically implemented suspension under 1182(f) by denying visas. That way, there would be no need for people to get stuck at the terminal. Judge Hawkins joked that such a regime would be “like Tom Hanks at the airport,” in the (awful) movie, The Terminal. (This does not mean, as some have suggested, that aliens with a right to a visa also have the right to enter.). Wall repeated at several points that an injunction requiring the issuance of visas, but not entry, would make no sense. Thus, the correct remedy is to allow the denial of the issuance of visas altogether.
Even if the Ninth Circuit disagrees with the government’s reading of the statute, § 1152 applies only to immigrant visas. The district court’s injunction applied to both immigrant and non-immigrant visas. During oral arguments in Washington v. Trump, Washington state solicitor general Noah Purcell conceded that § 1152 did not apply to non-immigrant visas. This has been, from the outset, the Achilles’ heel of the challengers’ statutory argument. However, Katyal argued that § 1152 should also apply to non-immigrant visas.
This is one of the stranger arguments advanced in the case, because the statute specifically refers to the “issuance of an immigrant visa.” (emphasis added). Judge Hawkins asked, somewhat skeptically, “Do you think §1152 applies beyond immigrant visas?” Katyal replied, “I agree the text doesn’t, but as Judge Friendly found, and as the government conceded in Olsen, it does extend beyond that, because of the way in which the statute took relevant factors and said, nationality is no longer a relevant factor for purposes of our immigration system” (44:40). Judge Hawkins asked if the court should look to the “purpose” of the statute, as opposed to its plain text. Katyal, citing Judulang v. Holder (2011), said that courts should look to what Congress deems “relevant factors” and what it does not. When you ask that question, he explained, “nationality is no longer such a factor.”
Likewise, Judge Gould asked whether the court could still affirm on statutory grounds if the court found that there is no violation of the Establishment Clause. Katyal replied, “absolutely,” but added a moment later that this holding would require “reading the statute [§ 1152] to encompass non-immigrant visas. That is our reading. We think that is the way since Judge Friendly’s decision, the way it has been read. Obviously there could be a question about that” (47:00). There is not only a question, but also an answer: no.
The core of Katyal’s argument appears on page 38 of Hawaii’s brief:
For this reason, courts have long concluded that conclusory generalizations based on an alien’s “group” are an “impermissible basis” for the exercise of discretion absent exigent circumstances. Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.) (deeming such “invidious discrimination” a “consideration that Congress could not have intended to make relevant”); see also, e.g., Chadha v. INS, 634 F.2d 408, 429 (9th Cir. 1980), aff’d, 462 U.S. 919 (1983). And courts have repeatedly applied that rule to bar restrictions on entry based on nationality in particular: In Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997), for instance, the Government did not dispute—and the district court agreed—that it was unlawful for the Executive to adopt a policy of denying “nonimmigrant visas” to “particular individuals because of * * * the[ir] place of birth.” Id. at 38-39 (emphasis added); see also Bertrand v. Sava, 684 F.2d 204, 212 n.12 (2d Cir. 1982) (immigration officials may not “discriminate on * * * the basis of race and national origin”); Abdullah v. INS, 184 F.3d 158, 166 (2d Cir. 1999) (same); Former Federal Immigration & Homeland Security Officials Amicus Br. 4-7, Dkt. 176. The Order cannot be reconciled with these basic principles.
With all due respect, this argument is flawed.
Wong Wing Hang v. INS
First, while it is always respectable to cite opinions from Judge Friendly—indeed, the decision itself quotes Learned Hand, making it a Second Circuit twofer!— Wong Wing Hang is not on point. In this case, the petitioner asked the Second Circuit to set aside a Board of Immigration Appeals decision that declined to suspend his deportation order. The Second Circuit affirmed, ruling for the government. Judge Friendly observed:
[T]he denial of suspension to an eligible alien would be an abuse of discretion if it were made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as an invidious discrimination against a particular race or group, or, in Judge Learned Hand's words, on other ‘considerations that Congress could not have intended to make relevant.’”
In no sense did the case involve § 1152. Instead, it involved the rights of an alien already within the United States, for whom different standards apply. Nonetheless, Hawaii cites the case for the broad proposition that under the 1965 Immigration and Nationality Act, the government cannot consider nationality with respect to issuing immigrant and non-immigrant visas. During the arguments, Katyal explained that Judge Friendly’s opinion stands for much more:
“Congress didn’t just say something about immigrant visas. Congress said in 1965 we are changing fundamentally what are immigration system is about, and we are not going to engage in nationality based discrimination anymore. That extends even to non-immigrant visas.”
It will take far more than a nebulous statement from Judge Friendly, in a case where the petitioner lost, that in no way implicated § 1152, to trump the provision’s plain text.
Olsen v. Albright
Next, Hawaii cited a case that was referenced several times during oral arguments, Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997). In this case, a former member of the Foreign Service sought a determination that his termination was unlawful. Specifically, there the plaintiff claimed “that he was terminated because he objected to and refused to follow ‘profiles’ that required him to adjudicate visas on the basis of the applicant's race, ethnicity, national origin, economic class, and physical appearance.” During his tour of duty, plaintiff was responsible for “adjudicating applications for nonimmigrant visas.” (This fact, mentioned only once in passing, forms the crux of Hawaii’s argument).
Critically, at issue were policies not of the United States government, but of the Consulate of Sao Paulo, Brazil. One of the policies from the “Consulate’s manual” asked officers to opine on the “applicant’s physical appearance and economic status.” Another guideline “focused on the race, ethnicity, place of birth, and national origin of applicants.” In particular, applicants born in certain places in Brazil were considered “suspect unless older, well-traveled, etc.” For Korean or Chinese applicants, the guideline stated: “Major fraud; hard to check. In general, they are almost always called for an interview.” A 1993 memorandum said “Filipinos and Nigerians have high fraud rates, and their applications should be viewed with extreme suspicion, while British and Japanese citizens rarely overstay, and generally require less scrutiny.”
Plaintiff asserted that these policies were “illegal” and that he was disciplined because “he had issued visas ‘to typical post fraud profiles.’” He was instructed to “spend approximately three minutes per interview and that he should attempt to achieve a thirty percent refusal rate,” basing his “judgment on the profiles.” He refused. Plaintiff was denied a promotion, rated as unsatisfactory, and was told to stop working in the visa unit. After he said the policy was “inconsistent with the law” and “based on stereotyped notions of appearance” and “ethnic, gender, class or age stereotypes,” he was terminated from the foreign service.
The district court raised concerns “that the Consulate's policies were discriminatory.” In response, the government submitted a declaration explaining that the policy did not discriminate on the basis of nationality with respect to the issuance of visas:
On July 23, 1997, the Defendants filed the Declaration of Marc Gorelick, Acting Director, Office of Fraud Prevention Programs, Bureau of Consulate Affairs, in response to the Court's queries. Mr. Gorelick stated that the Consulate's policy of scrutinizing more intensely the visa applications of Chinese, Arabs, and Koreans was appropriate because of the high fraud rates among these nationalities. See Declaration of Marc Gorelick (July 23, 1997), at 3. . . . In his Declaration in support of the Consulate's policies, Mr. Gorelick pointed out numerous instances and types of visa fraud in Brazil among Chinese, Koreans, and Arabs. See Declaration of Marc Gorelick (July 23, 1997).
The district court concluded “that the [Sao Paulo] Consulate's policies are unlawful.” But that isn’t the relevant fact for Hawaii v. Trump. Rather, Hawaii suggests that the district court held that § 1052 applies to non-immigrant visas. Such a ruling would have been monumental, and would certainly have been challenged; no appeal was even filed. However, the case did no such thing, and such a conclusion can only be reached by tenuous reasoning. First, the phrase “nonimmigrant visa” appears only once on page 33, when describing the plaintiff’s duties: that is, “adjudicating applications for nonimmigrant visas.” Second, the discussion about discrimination based on “place of birth” appears six pages later on page 39. Third, the key point appears on page 37, where the court states: “The Government does not contend that the Consulate is permitted to engage in discrimination on the basis of race, ethnicity, or nationality.”
With all due respect to the court, I am extremely skeptical the government actually made this concession. There is no citation to support this proposition. The policy at issue only affected the consulate in Sao Paulo. There is no indication that the government unnecessarily implicated the legality of policies practiced around the globe. To the contrary, a contemporary article in Washington Post explains that the policies at issue “were not part of official policy, but were drawn up by junior officers in Sao Paulo and used among themselves to signal which applicants should be called in for interviews and carefully scrutinized.” Further, the consulate in Sao Paulo stopped using the policy in 1994. Without any more facts, it is improper to extend this ruling to apply to the U.S. government as a whole. I attempted to download the pleadings from CM/ECF (D.D.C. 96-CV-570), but they are not available online. An enterprising lawyer in the Solicitor General’s office should pull Director Gorelick’s declaration from July 23, 1997 (Docket Entry No. 62). I would be willing to wager it does not say that the government is unable to consider nationality when issuing non-immigrant visas. A 28(j) letter, to rebut Hawaii’s statements during arguments—this position was not directly stated in the brief—would also be in order.
Further, Olsen’s statutory analysis is non-existent, as it doesn’t even parse the text of § 1152(a), which specifically references “immigrant visas.” The confused opinion repeatedly conflates the deferential standard of review for obtaining visas overseas with the far more stringent standard for removing aliens already within the United States, who are afforded far more statutory and constitutional rights. For example, the court cites Abdullah v. I.N.S., 921 F.Supp. 1080, 1093–94 (S.D.N.Y.1996), which found a violation of the Due Process Clause—not the INA—because of “[t]he use of a fraud profile on ethnicity.” Hawaii’s brief at p. 38 inexplicably cites Abdullah on appeal to the 2nd Circuit with the parenthetical (“same”). That case, too, was decided on constitutional and not statutory grounds, and is thus inapposite. The final case cited, Bertrand v. Sava, 684 F.2d 204, 212 n.12 (2d Cir. 1982), implicates a different provision of § 1182 that refers to “any alien,” and not merely immigrant visas. This is not the string cite to hang your case on.
Even if I am wrong about Olsen, it makes no difference, because Solicitor General Wall repudiated this position during arguments. Exhibit A is the visa waiver program. The United States allows aliens from certain countries to enter without a visa for up to 90 days. Aliens from these countries are granted this privilege because the perceived risk of overstaying is much less. Take a look at the countries on the list—all are fairly prosperous, and most are in Europe. Spaniards are allowed entry under the visa waiver program, but Mexicans are not. Further, pursuant to a statute signed President Obama, nationals of Iraq, Iran, Syria, and Sudan are not eligible for the visa waiver program—even if they are dual citizens of the United Kingdom.
During oral arguments, Jeff Wall correctly explained, “We make nationality-based decisions in the non-immigrant visa context every day. That’s what the visa waiver program does. Nationals of some country have to get visas, nationals of other countries do not. Olsen does not say anything different.” Hawaii’s reading of Olsen to the contrary should be rejected. From my perch, I am comfortable in saying Olsen was simply wrong as applied to non-immigrant visas. If there is any doubt, the Ninth Circuit should call for supplemental briefing to assess the government’s position with respect to the policy at issue in Olsen. Without it, Hawaii’s statutory argument collapses. As Wall noted, “The language of the statute does not get you where he wants to go. The language of the statute deals with immigrant visas. It does not deal with entry, and does not deal with non-immigrant visas.”
Beyond the conflict between the statutes, Judge Gould asked whether there “was an adequate finding of detrimentality” under § 1182(f) to “justify keeping everyone from a particular country out of the country.” (28:30). Wall responded that the deteriorating conditions of the six named countries means that “we are not getting reliable information.” This point, which was lost on the earlier district court judges who ruled on the issue, is critical. There does not have to be a showing that the specific aliens denied entry would pose a threat, but merely a showing that the entry of the class of aliens would be detrimental because the United States cannot verify their identity “in the face of uncertainty.” On a related note, Fourth Circuit Judge Keenan last week asked whether the President determined that the aliens “may” be detrimental,” or “would” be detrimental. Parsing this statute for semantics is inconsistent with the Commander in Chief’s central role in our separation of powers.
Constitutional Moment, Not Constitutional Crisis
Both Katyal and Wall—reading from notes—closed with broader policy statements about the implications of this case.
Katyal repeatedly explained that no President before Trump had ever attempted such a “dragnet.” To that end, a ruling for Hawaii would not “hamstring any President from anything that has happened in our lifetime. This is a very unusual circumstance where have all these different statements.” The implication is that because Trump is sui generis, a government defeat would have no collateral consequences. “If you rule for us,” he said, “you leave intact the President’s power, the decisions every President has made in our lifetime, and you preserve the status quo that has existed for decades.” However, “If you rule for him,” pointing at Wall, “you defer to the President in a way that history teaches is very dangerous.” The former acting SG even referred to the order as “unconstitutional and un-American.”
This argument is a species of the ever-present charge that one group or another is on the wrong side of history. I find these us-against-them arguments extremely unpersuasive, and it was particularly misplaced after such a sophisticated legalistic argument.
Wall, who spoke last, repeated his refrain from last week:
The precedents set by this case for the judiciary’s role in reviewing the President’s national security and immigration authority will long transcend this debate, this order, and this constitutional moment . . . . I know they disagree with this president and many of his policy judgments, but none of this converts it into a constitutional crisis, and we respectfully submit that court should not treat it as one. It ought to leave this debate where it belongs, in political arena.”
At bottom, this case comes down to two beacons.
Katyal explained: “Our founders wanted America to be a beacon on our coast. That beacon ultimately is the majestic Article III and the grand contours of the First Amendment.” Wall rejoined, “Counsel is right this country is a beacon, but what makes this country a beacon is the rule of law.” In this sense, the courts of Article III, to date, have collided with the rule of law. I expect that collision to subside soon enough.