Published by The Lawfare Institute
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After eight months, thousands of pages of briefing and three Supreme Court orders, the Trump administration has reiterated what had been its position all along: that a pause on the entry of immigrants from certain at-risk countries was needed to give the government an opportunity to reassess its policies. Since the first executive order in January, talented lawyers ably told the story that this rationale was always a pretext for Donald Trump’s Islamophobia. Respected jurists accepted that narrative and issued nationwide injunctions that barred the president from exercising his constitutional and statutory authority.
With the president’s proclamation Sunday, reality has set in. Even while charges of animus and bigotry were flying, behind the scenes, the executive branch undertook a methodical review of the “identity-management and information-sharing capabilities, protocols, and practices” of more than 200 nations. The proclamation noted that this was “the first such review of its kind in United States history,” and could not have been conducted in the first week after the inauguration or, for that matter, in March. The earlier executive orders were never designed to implement a permanent travel ban against Muslims but, instead, were needed to provide a “temporary pause,” during which a new policy could be reviewed and implemented. And the rationale for selecting these countries was based on objective criteria regarding how each nation shares information with the United States—precisely the grounds stated in the March executive order.
The challengers in the pending litigation will no doubt argue that this new policy is still tainted by the president’s Islamophobia, even though North Korea and Venezuela—not Muslim nations—are now affected. The argument for pretext becomes much weaker as the attenuation from the initial order grows. Out of necessity, the challengers will have to contend that the policy is subject to what amounts to a “forever taint,” as Supreme Court Justice David Souter labeled it in McCreary County v. ACLU. That is, arguing that because of the president’s conduct before and after the inauguration, his bias has been etched in stone and cannot be eliminated. For example, Anthony Romero, executive director of the ACLU, explained that the new proclamation “is an apparent effort to paper over the original sin of the Muslim ban.”
Appeals courts, of course, rejected the notion that the president’s actions are subject to a “forever taint,” but the judges offered no guidance as to when or how that taint may be eliminated. Perhaps the Ninth Circuit will come up with a balancing test that weighs how much time elapsed between terrorist attacks and the president’s tweets, to illustrate the strength of his animus. Or perhaps the Fourth Circuit will dismiss as a ruse the fact that America does not accept “electronic passports” from Somalia.
The far likelier scenario is that the courts will finally recognize that the government’s request for additional time to create an intricate and fact-based entry plan was legitimate all along; that producing a policy of this length and magnitude, which had never been done before, required widespread coordination within and without the government; that requesting foreign governments tweak their procedures could not be done overnight; and that excluding from the new list some countries that were initially suspect, but which were able to fix their procedures (such as Sudan), suggests that the United States government was acting in good faith after all. The argument that this latest policy is still a “Muslim Ban,” a phrase that I’ve noticed Neal Katyal using in recent speeches, is no longer credible.
Peter Margulies points out that beyond constitutional doubts, there still may be statutory problems with the new proclamation: The policy amounts to nationality-based discrimination with respect to the issuance of visas in violation of 8 U.S.C. § 1152(a), which provides:
(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.
As I noted on this blog in May, subparagraph (B) provides an exception to subparagraph (A):
The general policy is that visas should be issued without concern for nationality. The history of this provision reveals that Congress’s primary concern was to eliminate nationality-based quotas, which were a staple of our immigration law before 1965. But when the Secretary deems it necessary, he can adopt special procedures for issuing visas that take into consideration nationality. Simple examples could include the adoption of different procedures for embassies in certain countries where the risk of fraud is higher. Broader examples could include, as here, the adoption of stronger vetting processes to screen out risks of terrorism.
Further, I explained that because the government has the far broader power to deny entry to certain classes of aliens under 8 U.S.C. § 1182(f), it has the far lesser power to deny visas.
One final point is worth stressing: that despite the never-ending spate of nationwide injunctions, the government has always been in the driver’s seat. The new policy goes into effect in large measure on Oct. 18—eight days after the Supreme Court was scheduled to hear oral arguments in the litigation over the earlier travel ban. I never expected the Justices to get bogged down asking about Trump’s tweets and Rudy Giuliani’s cable-news hits. Now, the arguments, if they are ever held, will focus exclusively on how this latest policy will be implemented and whether the lower courts’ finding of animus are still relevant. (Preview: They’re not.) Indeed, in one of his first official acts, Solicitor General Noel Francisco has asked the court for an additional round of briefing prior to argument. While the challengers may have been pushing the breakneck pace of the litigation with a blistering briefing schedule, all along, the solicitor general was setting the pace.
Since the outset of this case, I’ve expected a victory for the government; now, the odds of a victory have increased dramatically. In any other context, Justice Stephen Breyer would be swooning at the level of cooperation and collaboration between the United States and nations around the world to reach global compromises. Granted, this is not a normal case, but a decision invalidating this most recent proclamation will look strange to a law student reading the decision in a casebook 25 years from now. On its face, it applies to countries around the world that have poor relations with the United States, and all vestiges of the prior orders have been removed. At worst, the court can find the cases moot and vacate the lower-court decisions. Whether or not this is a proper application of the Munsingwear doctrine, the decisions of the Fourth and Ninth Circuits must be quarantined as byproducts of a judicial panic that should not be cited going forward.
I remain opposed to this proclamation and all prior executive orders as a policy matter, but the president has provided more than enough justification—both under his statutory and constitutional authority—to survive judicial scrutiny.