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Yesterday afternoon, the Fourth Circuit, sitting en banc, heard two hours of argument in IRAP v. Trump. At issue was District Judge Theodore Chuang’s nationwide preliminary injunction enjoining enforcement of Section 2(c) of Executive Order 13,780, President Trump’s revised March 6 travel ban order. This provision suspends the entry of aliens from six countries—Iran, Sudan, Syria, Libya, Somalia, and Yemen—for 90 days.
Acting Solicitor General Jeffrey Wall argued for the government; Omar Jadwat, director of the ACLU Immigrants' Rights Project, argued for appellees, individuals allegedly harmed by the executive order as well as organizations whose clients and members are allegedly harmed by the executive order.
Because some familiarity with each party’s overarching points is helpful in understanding what became a sprawling argument focused on various aspects of the constitutional issue, I start with a brief overview. Below that is a fuller summary of the key points and the most interesting moments of argument.
In general, the government seeks to emphasize the temporariness and overall modesty of the executive order. On this view, the executive order doesn’t ban visas for particular foreign nationals; it pauses the visa process in order to give the Trump administration time to review the existing procedures and make changes as needed—changes not so different, the government suggests, from the Obama administration’s decision to make dual citizens from these same countries (plus Iraq) ineligible for the visa waiver program (though not ineligible for visas).
As for the centerpiece of the government’s legal argument, Wall asserts that the key question, per the immigration case Kleindienst v. Mandel (1972), is whether the executive order is “facially legitimate and bona fide." Wall repudiates the suggestion that the “bona fide” prong of the standard opens the door to a purpose inquiry. He argues that even if there is some kind of bad faith exception to what should be understood as the general rule that courts should not look behind the executive order, the President’s statements in this case—both on the campaign trail and after the election—were ambiguous, such that the “presumption of regulatory” required reading them in a way that is maximally charitable, rather than hostile, to the President.
The ACLU’s argument is noticeably more disjointed, but Jadwat also fields a lot of difficult hypotheticals designed to get at limiting principles for the plaintiffs’ assertion that the courts must consider the purpose behind the President’s policy and, in assessing that purpose, may look to statements outside the four corners of the executive order. The ACLU’s main points track its brief. Jadwat argues that the Mandel “facially legitimate and bona fide” standard is inappropriate here because this is an Establishment Clause case that, as such, demands consideration of the President’s purpose, as reflected in his statements from the campaign trail onward and other facts that tend to undermine the stated national security motivations for the order. In other words, although this is an immigration case, the court should rely on the standard set forth in the traditional Establishment Clause line of cases, starting with Lemon v. Kurtzman (1972), which requires that the challenged government policy be motivated by a “secular purpose.” Even if Mandel does apply, the government’s insistence that the court not look behind the executive order’s text disregards the “bona fide” prong of the standard; as Justice Kennedy explained in his plurality opinion in Kerry v. Din (2015), the appropriate course is to examine “additional factual details beyond” the face of the decision when there is “an affirmative showing of bad faith.”
It’s a sleeper of an issue, but this case has a serious standing question.
Wall argues that only one of the four plaintiffs has a live claim, John Doe 1, and his injury is speculative because his wife is likely to get a waiver if the order were to go into effect. Even if not, where government conduct is allegedly discriminatory, the putative victim—the alien abroad—is the one who must bring the claim. "Plaintiffs recognize that, and that's why they try to reframe the injury as, a message of condemnation that just flows out to the community," Wall suggests. In the case of an executive order actually explicitly banning Muslims, which Wall seems to recognize as problematic, Wall argues that U.S. citizens could bring Mandel-type claims based on the Due Process Clause.
As expected, Jadwat fields a lot more questions about standing and the nature of the plaintiffs’ asserted injuries than did his government counterpart. Most of those questions are from Judge Agee who focuses on how the circumstances, visa status for example, of the individual plaintiffs might affect their standing.
The ACLU’s most comprehensive standing argument, designed to cover all of the plaintiffs—including those who do not appear to have relatives at risk of being locked out of the U.S.—is predicated on a broad conception of the alleged Establishment Clause harms at issue: that is, the plaintiffs are injured by the executive order’s condemnation of their religion and exclusion from the broader community. The ACLU's theory of standing doesn't rely on the type of visa at issue, so on this view, the fact that none of its individual plaintiffs' cases involve non-immigrant visas shouldn't affect their ability to challenge Section 2(c) in its entirety. But Judge Agee asks a series of questions that presumed that the plaintiffs’ standing is visa-type-specific. (Judge Agee: "Who has standing to raise the issue of nonimmigrant visas?" ...How does the nonimmigrant visa issue get before the court?”) Jadwat makes his point clearly enough ("[The individual plaintiffs and clients and members of the organizational plaintiffs] are injured by the order . . . not only with respect to immigrant visas, not only with respect to nonimmigrant visas, but because it is embodying the message of condemnation to their religion that is the quintessence of an Establishment Clause violation."), but then Judge Agee hits back with a tangential question about the fact that the district court had addressed standing for the four individual plaintiffs but not the organizational plaintiffs. This creates some confusion, at which point Judge Motz steps in and asks Jadwat to distinguish Valley Forge.
Valley Forge was a 1982 case in which the Supreme Court (among other things) declined to hold that plaintiffs have standing as citizens to bring an Establishment Clause challenge to the government's conveyance of public property to a church-affiliated college. Jadwat argues that the Valley Forge plaintiffs did not allege their religious beliefs were injured by the land conveyance and had no proximity to the complained-of conveyance.
Then it gets confusing again. When Jadwat reiterates a point on which the government agrees, that John Doe 1 has the strongest argument for standing because his ability to be with his family member is implicated by the order, Judge Agee cuts in to point out that family ties weren’t dispositive in Fiallo v. Bell (1977). In Fiallo, the Supreme Court declined to second-guess Congress's determination that preferential immigration status under the INA is warranted for illegitimate children and their mothers but not for illegitimate children and their natural fathers. Standing was not at issue in that case, as Jadwat points out, nor did it deal with the Establishment Clause.
These are the sorts of glancing exchanges that sum up how standing gets discussed in the course of the argument.
The Appropriate Legal Standard: Mandel or Lemon
The main merits dispute is whether the courts may peer behind the executive order to consider the President’s intent—and if so, what kinds of evidence of anti-Muslim animus the court may consider.
At the most basic level, this disagreement is about the right legal standard. The government’s position is that Mandel governs: that is, the political branches have the "exclusive" power to exclude aliens and the court's review is limited to determining whether the executive order is “facially legitimate and bona fide." This is “basically rational basis review,” according to Wall. In contrast, Jadwat argues that this is an Establishment Clause case and demands consideration of whether the government’s primary purpose in issuing the executive order was “secular.” This is the standard required by Lemon and elaborated upon in McCreary v. ACLU (2005).
Emphasizing the idea that Establishment Clause precedents don’t readily apply to the immigration context, Wall argues that "domestic Establishment Clause precedent" doesn’t get “exported” to the border to compel a judicial inquiry into the purpose driving the decisions of the political branches. Judges Agee and Niemeyer also express great skepticism at the idea that “domestic” Establishment Clause cases that do not deal with foreign policy apply in this case and suggested that Mandel more clearly applies because it specifically involves immigration as well as the First Amendment. Jadwat counters with Justice Kennedy’s plurality opinion in Din, which instructs the courts to consider whether the executive order was issued in bad faith by looking to the evidence, including the President's statements.
What Does “Bona Fide” Mean?
Even assuming Mandel applies, the government and the plaintiffs diverge on how that standard should be interpreted—particularly the “bona fide” prong.
Jadwat argues that the “bona fide” prong means that the courts must examine evidence of bad faith—and that's "the same evidence that proves improper purpose under the Establishment Clause," as the plaintiffs’ brief succinctly puts it. In other words, Mandel and Lemon get us to roughly the same place: the courts get to examine the purpose behind the policy.
At various points, Judge Harris in particular expresses an inclination toward a relatively capacious conception of "bona fide," as permitting a purpose inquiry. For example, challenging the equivalence Wall draws between the Mandel standard and rational basis review, Judge Harris inquires whether this amounts to reading the “bona fide” prong out of Mandel. When in response Wall suggests a lack of clarity as to the meaning of “bona fide,” given what the Mandel Court actually did, Judge Harris asks whether in Mandel there were any official statements that seemed to call into question the purported government rationale. Wall says yes: in Mandel, Justice Marshall, in dissent, urged that the “briefest peek” revealed the foreign national in Mandel was denied a visa for being Communist, not for previous visa violations as stated by the Attorney General. In short, subjective motivations were alleged to be at play in Mandel but the Court still refused to look behind the curtain. From this Wall concludes that if an executive order is neutral on its face, it satisfies both the “legitimate” and “bona fide” prongs of the Mandel test.
And if there is a bad-faith exception that allows the courts to assess purpose, per Judge Kennedy’s concurrence in Din, Wall argues there needs to be an affirmative showing of bad faith; the campaign trail statements at issue in this case don’t cut it.
Confusion pervades the extended colloquy between Jadwat and the judges on the issue of whether the executive order is facially legitimate and what facial legitimacy requires. Judge Niemeyer asks the question that sends the ACLU sailing in the wrong direction and forces it to spend significant time on course correction: whether the plaintiffs would object to the executive order if a different candidate had won the election and issued this very order, without the kind of antecedent statements that Trump had made. Jadwat’s response: "In that case [the executive order] could be constitutional."
This triggers a significant reaction from the judges. Judge Niemeyer interprets this to mean that an order that is on its face legitimate becomes illegitimate "because of campaign statements by the candidate," although Jadwat tries to clarify this is not what he meant. Cutting through the confusion, Judge Keenan asks simply: “Are you agreeing the order is legitimate on its face?” Jadwat: “No, your honor.” Numerous judges begin jumping in at this point.
When asked again whether the executive order is facially legitimate, Jadwat attempts another tack: he argues that the executive order is not facially legitimate because it is “unprecedented in our nation’s history.” Judge Shedd expresses disbelief at the suggestion that this is the right way to approach facial legitimacy; is the first time for anything always illegitimate, he asks? Judge Niemeyer then brings up a point already made by the government, that the Trump policy didn’t come from nowhere; the Obama administration had certain visa policies geared toward foreign nationals from the target countries (plus Iraq).
In the midst of the confusion, Judge Keenan offers a clarifying question: “What about the text of the order . . . . What about what the order says renders it facially illegitimate?” Jadwat responds that the order is inherently illogical—that if national security were the administration’s real concern, this is not the list of countries it would come up with—but this attempt to explain that the order is, by the administration’s stated logic, both underinclusive and overinclusive, opens him up to objections from Judge Niemeyer, who points to the language in the order outlining the conditions in each country that made nationals hailing from those countries higher risk. And Judge Shedd expresses confusion at what he sees as the upshot of Jadwat’s argument—that the executive order would be on more solid ground if it covered more countries.
Again Judge Keenan offers a simple clarifying question: Does factual accuracy matter for facial legitimacy? Jadwat argues that accuracy does matter. Judge Niemeyer then peppers him with questions that seem designed to get at who gets to decide what is factually accurate, and at what point does assessment of factual inaccuracy fall outside the courts’ institutional competence.
Later, during a discussion of the significance of Trump’s statements, Judge Keenan asks whether the ACLU loses if the court cannot consider the President’s campaign statements. Jadwat says no. This frustrates Judge Niemeyer, who describes it as at odds with Jadwat's earlier response to his hypothetical about the facial legitimacy of the order if issued by another candidate without Trump’s penchant for unofficial statements.
Debating the Significance of Trump’s Statements: Oath, Ambiguity and Taint
A good deal of the argument centers on how, if at all, the courts should assess Trump’s various statements allegedly reflecting animus toward Muslims. Wall emphasizes that most of the statements at issue were made on the campaign trail, and that "constitutionally significant events" marked a break from those statements: these included the President's election and oath-taking. But Judge Floyd points out the Trump administration also made potentially problematic statements after the election, and after oath-taking, that also suggest animus toward Muslims.
Wall argues that Trump’s statements are far more ambiguous than the plaintiffs are alleging—that is, they could be read as pertaining to terrorists, not Muslims. This is a key move for purposes of his larger argument, that the courts must interpret the President’s statements as charitably as possible, with the presumption that the political branches act lawfully. In particular, Wall argues that Trump had no anti-Muslim animus when, upon signing the original executive order in January, he stated, “we all know what that means” (described by Judge Wynn as “a subtle wink and nod”).
Trump’s statements are also discussed in terms of how long the potential taint of his alleged animus could be said to extend. First, some judges express discomfort at the idea of second-guessing the President’s national security determinations and point out that he did not make these determinations unaided: there was, after all, that March 6 letter signed by Attorney General Sessions and DHS Secretary John Kelly and expressing concern about "weaknesses in our immigration system that pose a risk to our Nation's security." Judge Niemeyer then expresses concern at the idea that the alleged taint of President Trump's statements extended to the Attorney General and DHS Secretary, who "gave a basis for the order," and he challenges Jadwat's suggestion that this basis was provided as ex-post justification for a policy predetermined by Trump, sans facts and well before any consultation with his cabinet.
Debating the Severity of Trump’s Policy
Things get interesting when, in a line reminiscent of Trump’s January 29 claim, Wall goes so far as to characterize the executive order as a Trump variant on an Obama-era policy. He states: “The Congress and the previous administration designated these countries . . . on the basis of national security threats, and what the President did when he came into office was say, look, I know the previous administration was satisfied that that was enough for those particular countries, but I'd like an opportunity to reassure myself that we're doing enough with respect to those countries.”
Judge Thacker is unimpressed with the level of generality being used to support the linkage. Recall that the Obama policy in question rendered dual nationals from those countries ineligible for the visa waiver program but not ineligible for visas. She asks pointedly, “You're saying the previous administration did what with respect to those six countries?” This forces Wall to specify the relative narrowness of the Obama administration’s policy, but he smoothly pivots to the temporary, “pause button” nature of the Trump executive order. His point is one he returns to repeatedly: that this is not a visa killer; this is just a 90-day suspension designed to buy the Trump administration the time it needs to fashion appropriate policies with respect to those 6 (originally 7) countries—policies not unlike the one the Obama administration put in place.
What About a Close Reading of 8 U.S.C. § 1182?
At one point, Judge Keenan expresses concern about the lack of any linkage in the revised executive order to the nationals of the countries; that is, the order is strictly about the problems in the targeted countries on a country-level but doesn't say anything about the nationals themselves that makes their entry detrimental for the US. And she provides a textual basis for her concern: § 1182(f) permits the President to suspend entry when he "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" (emphasis added by Judge Keenan). So, she asks, what in the text of the revised executive order shows that admitting these aliens “would be” detrimental (as opposed to may be detrimental) to the U.S.?
Wall uses this as an opportunity to reiterate that the Trump administration isn't doing anything fundamentally different from what the Obama administration did: the previous administration used country criteria to pull foreign nationals from the visa waiver program; Trump is using the same criteria to temporarily suspend the issuance of visas. Trump isn't saying he knows all of these nationals are dangerous; he is just uncertain and wants a little time to assess.
Judge Keenan comes back at Wall with the suggestion that this does not accord with the statutory text: under § 1182, the President can’t temporarily suspend visas whenever he is uncertain certain foreign nationals might pose a threat; the statute says he must find their entry “would be” detrimental. Wall acknowledges her point and reframes, explaining that the President indeed found it “would be” detrimental to let in people from countries where conditions have deteriorated as outlined in the executive order, at least until the President has had a chance to review the existing vetting processes.
A significant portion of the government’s half of the argument was devoted to clarifying a handful of technical points: the scope and effects of the injunction, the government’s view of the relationship between 8 U.S.C. § 1152 and 8 U.S.C. § 1182, and how Section 2(c) works in practice.
Wall explains that although the memorandum opinion accompanying Judge Chuang’s order would seem to support only an injunction that forces the government to continue issuing immigrant visas, the order more broadly enjoins 2(c) in its entirety. In response to Judge Wynn's inquiry about whether the government sees entry and issuance of visas as distinct, Wall offers a long answer that boils down to the following: § 1152 (visas) is not a limit on § 1182 (entry) but is the means by which § 1182 "has always" been implemented. "Forcing us to grant visas [under § 11152] just so that people could come to the country and then be denied entry [under 1182] . . . is a sort of fruitless exercise that the State Department has never engaged in."
When asked, in “real-world terms,” what the injunction stops the government from doing, Wall explains that the injunction prevents the President from treating nationals of the six targeted countries differently. As for what the visa entitles them to, the visa permits them to get to the U.S. border and, unless the customs official determines otherwise for some specific reasons, allows them entry.
Seemingly in light of Wall’s characterization of the order as not a travel ban but a kind of “pause button” designed to facilitate a review of current visa procedures for the screening and vetting of foreign nationals, the judges ask what the Trump administration has been doing on the review front since issuing the original and revised orders—it’s been, after all, more than 90 days since the first executive order was issued. Wall says the administration has not been engaging in that review process in light of the breadth of the injunction issued by District Judge Derrick Watson in the Hawaii litigation: Judge Watson enjoined all of Sections 2 and 6, which includes the provision that directs the DHS Secretary to conduct a worldwide review to determine whether and what additional information is needed from each foreign country to allow the US to recommence processing visas for their nationals. So, in Wall’s phrase, the Trump administration put its “pencils down.”
Wall also walks the court through how 2(c) was designed to work: he emphasizes that in determining whether a national from one of the six countries is eligible to get a visa, the consular officer would go through the many possible bases for a waiver, such as having a close family member in the U.S.
The Missing Limiting Principles
Both sides have some trouble cabining the implications of their respective arguments with clear limiting principles.
Wall seems to stumble when presented with the question of whether the courts could look to the President’s statements in an extreme case, such as where the President explicitly states a desire to exclude Jews from the country and then issues an Israel-specific visa ban (Jadwat’s hypothetical). At first, Wall holds to the government’s line: if the President states a facially legitimate reason for the policy, the courts can’t look behind the policy. But when asked point-blank by Judges Keenan and Wynn whether, then, it simply doesn’t matter what the President says, all that matters is what the President does, Wall backtracks a bit: the President could say something in an official capacity that might bear on the legitimacy of the policy. Wall doesn’t articulate a clear rule or principle for determining the point at which it becomes necessary for courts to look behind the curtain on the President’s national security policies.
The problem comes up in different ways at several points, as with this early exchange with Judges Motz and Harris:
Judge Motz: What would be wrong with [an explicit] ban on Muslims?
Wall: I think that would run straight into Mandel's constitutional limit about facial legitimacy.
. . .
Judge Harris: . . . It would run into Mandel because even if the President made a national security determination that Muslims couldn't be safely admitted to the country, the courts could look behind that and say that's not okay?
Wall: No, I think that raises a serious question, Judge Harris, about whether using religion as a proxy in that way would be a facially legitimate reason for Mandel purposes.
Judge Motz: That's not what you said in response to my question.
Wall: I meant to say the same thing. If a President . . . came in and had an executive order that actually did ban Muslims, and he said I'm doing it for national security purposes, I think that . . . it's hard to imagine . . . the courts would say that's a facially legitimate reason . . . .
Similarly, in light of the ACLU’s argument that the courts may—indeed, must—go beyond the four corners of the executive order to identify non-secular purpose, the judges press Jadwat for a principled articulation of the point at which the courts must defer to the President’s national security determinations, including his factual findings, and the practical circumstances under which, despite previous statements reflecting animus, any taint must give way to our conventionally robust conception of Presidential authority in the foreign policy realm. Ultimately, Jadwat’s answer seems to be that the fact of this case are so egregious that we don’t need to go there. That doesn’t stop the judges from trying.