Published by The Lawfare Institute
in Cooperation With
Earlier this week, Judge Derrick K. Watson of the U.S. District Court in Hawaii concluded that President Donald Trump’s Sept. 24, 2017 proclamation will likely be found to be illegal. Following the Ninth Circuit Court of Appeals opinion in Hawaii v. Trump, the district court ruled that the Travel Ban 3.0 “lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States.’” Given the Ninth Circuit precedent, which may be vacated by the Supreme Court in a week or so, there is nothing particularly surprising about Watson’s holding.
The Ninth Circuit has previously held Trump to a novel standard. Presidents Obama, Clinton, Bush, Reagan and Carter justified their authority under 8 U.S.C. § 1182(f) to deny entry to classes of aliens “in one or two sentences” or less. By contrast, Trump’s proclamation offered nearly 20 pages of rationale after a three-month review. Watson does not reference the four decades of executive-branch precedent and instead faults the government, which “infers the absence of a prerequisite from historical orders that were not evidently challenged on that basis.” In other words, the fact that five presidents used this authority without objection provides no basis to conclude that the action is lawful. (National Labor Relations Review Board v. Noel Canning, though not directly on point, suggests a very different answer.) Watson even concedes that the Ninth Circuit disregarded the weight of those practices: “By contrast, plainly aware of these historical orders, the Ninth Circuit has held otherwise,” requiring the President to “‘provide a rationale explaining why permitting entry of nationals from the six designated countries . . . would be detrimental to the interests of the United States.’”
What about the fact that the Supreme Court approved one such cursory proclamation signed by President George H.W. Bush, stating that “[w]hether the President’s chosen method” was justified from a policy perspective was “irrelevant to the scope of his authority”? There was no discussion in Justice John Paul Stevens’s majority opinion of whether the proclamation, which denied entry to Haitians, “lack[ed] sufficient findings.” This is true. But the reason is that the standard Watson is applying was created long after by the Ninth Circuit in Hawaii v. Trump, without taking account of either executive-branch precedent or the Supreme Court’s judgment. (I discussed this flawed framework in the context of Judge Barbara Keenan’s concurring opinion in IRAP v. Trump.)
The district court’s opinion holds the president to a standard that has never before been applied, and one that is frankly impossible to satisfy. It renders a standard for 8 U.S.C. § 1182(f) so difficult to satisfy that the law loses its vitality. First, Watson concludes that “categorical restrictions on entire populations of men, women, and children, based upon nationality, are a poor fit for the issues regarding the sharing of ‘public-safety and terrorism-related information’ that the President identifies.” How does the court assess this means-ends fit? By citing a “leaked DHS Office of Intelligence and Analysis memorandum” (emphasis added). This goes beyond citing tweets. The court here is reporting on leaked documents in order to illustrate that the offered justification is pretextual—a leaked report that conflicts with the government’s public position.
Second, the court finds the proclamation lacking because it “omit[s] any explanation of the inadequacy of individual vetting sufficient to justify the categorical, nationality-based ban chosen by the Executive.” Stated differently, the court would require the government to explain why it can’t adopt an alternate approach: assess, on a case-by-case basis, whether a specific alien should be denied entry. Again, the court ignores that five presidents have invoked § 1182(f) without making individualized determinations. And it ignores as well that the due process clause has no applicability to aliens seeking entry to the United States. If taken at face value, the ruling would require the creation of a bureaucracy, presumably with some form of judicial review, before the president could exercise a statutory authority that makes no reference to such a process.
Third, Watson uses scare quotes to refer to the government’s “stated ‘national security’ rationale,” which he finds is pocked by “internal incoherencies.” Why? Because the travel ban excludes “[n]umerous countries [that] fail to meet one or more of the global baseline,” and admits some aliens from those countries that do not meet those baselines. Regardless of any problems concerning overinclusiveness or underinclusiveness, the court finds that the proclamation’s “structural provisions are unsupported by verifiable evidence.” It is unclear what “verifiable” means in this context—presumably to the court’s judgment. Watson even faults the government, which “objected” to his review of a classified report.
To be clear, I am not criticizing Watson here. His analysis is actually a thorough application of the Ninth Circuit’s precedent, which, in fairness, binds him. (If he delayed his opinion for another week or so, when the Supreme Court is likely to vacate Hawaii v. Trump, it would no longer have been the law of the case, but here, time was of the essence because the order was going to go into effect.) Although the court lacks an awareness of what has been the story of the travel ban litigation to date, a different standard is warranted for President Trump. Judge Watson opens his opinion with this sport-inspired aphorism: “Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue.” There is another, more apt sports metaphor about the precedent he applies, from a recent Justice Thomas dissent: “If this question is close now, that is only because the Court keeps moving the goalposts.”
Judge Watson’s analysis reminds me of a colloquy in United States v. Windsor, which considered the constitutionality of the Defense of Marriage Act (DOMA). During oral arguments, Justice Elena Kagan noted that when DOMA was enacted in 1996, the House of Representatives explained that the law was drafted to “express moral disapproval of homosexuality.” Paul Clement, who was defending DOMA, did not disagree with the House’s explanation. He conceded that “if that’s enough to invalidate the statute, then you should invalidate the statute.” However, Clement noted, “that has never been [the Court’s] approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.”
Clement was correct. To date, the court had only applied what is known as a rational-basis review to such laws. Under this tier of scrutiny, laws are reviewed with a presumption of legality. The government’s defense of the law doesn’t need to be perfect, or even coherent. Indeed, under certain strands of rational-basis review, so long as the government provides a basis that could be the reason—even if it was not the real reason—courts will uphold it. As I tell my students, the word “rational” does not mean “logical” or “sensible” but means “conceivable.”
I agree with Benjamin Wittes that President Trump has “articulated little in the way of a coherent theory” to justify the travel ban. But the relevant standard of review does not require “coherence,” let alone “consistency.” A 20-page document based on national security concerns survives any strand of rational-basis review. However, if the goalposts are moved, and a form of strict scrutiny is applied—what Watson employed—the proclamation stands no chance.
Going back to Windsor, the Supreme Court indeed invalidated DOMA applying a standard that far exceeded “rational basis or even rational basis-plus,” the standard identified by Clement. If the Supreme Court decides to move the goalposts on Trump, then the third proclamation will fall. As I noted in one of my first posts on this matter, “Certainly, Justice Kennedy can change his mind,” but under prevailing law, the policy is lawful. To date, the Supreme Court has not shifted the goalposts. Indeed, its nonchalance in correcting the lower court reaffirms my original prediction that the policy will ultimately be upheld.