Two-and-a-half years ago, in the aftermath of the Paris attacks, Congress, with the support of the Obama administration, tightened scrutiny of foreigners entering the United States who had visited Syria, Iran, Sudan or Iraq during the past five years. In February 2016, the Obama administration extended the scrutiny to visitors from Libya, Somalia and Yemen.
Fast forward to March, when President Trump issued an executive order that banned, for a period of three months, visits to the U.S. from nationals of three of those four countries (Iraq excluded) along with Libya, Somalia and Yemen.
In support of its decision, the White House cited reports published in June 2016 by the State Department that cataloged conditions in each country that cause their residents, as the administration asserts, to present a risk to the security of the U.S. The administration cited no evidence in the nine months that ensued (or since) to reinforce its conclusion that national security demands a halt to visits to the U.S. from residents of those six predominantly Muslim countries. (A travel ban would not have prevented an attack like the one Monday in Manchester, which was carried out by a citizen.)
The evidence cited by the White House to bolster its claims feels warmed over. That explains, in part, why the State of Hawaii and others suing to invalidate the ban accuse the president of leaning on national security as a pretext to disfavor Islam, in violation of the First Amendment’s Establishment Clause. A series of federal district judges, along with three judges of the 9th U.S. Circuit Court of Appeals court, have agreed with the challengers, who have adduced a series of statements by Trump and his surrogates that suggest an intent to enact a Muslim ban.
The appeal came before the Fourth and Ninth (again) circuits last week. Regardless how they rule, one of the parties will look for relief to the Supreme Court. Yet notwithstanding what will be a push by at least four justices –Roberts, Thomas, Alito and Gorsuch – to side with the president, the administration will struggle to secure a majority for its position. (More on Justice Kennedy in a moment.)
During arguments last Monday before the Ninth Circuit, Jeffrey Wall, the acting U.S. solicitor general, contended that the Supreme Court has authorized the president to restrict entry of foreigners into the U.S. and obligated judges to defer to that decision provided it is based on a “facially legitimate and bona fide reason.”
To say that Trump acted in bad faith with an intent to discriminate against Muslims, would require “the strongest showing for that sort of remarkable holding, and I just don’t think plaintiffs have put together the kind of record” that would support that conclusion, Wall argued.
Congress designated three of the six countries as sponsors of terrorism and removed visitors from those countries from the so-called visa waiver program, he noted. In short, Wall argued, the Trump travel ban reinforces a determination reached previously.
Therein lies the weakness of what Wall is defending. For all its talk of the need to bolster security, the White House has not assembled a record that could lead courts to defer to its judgement about the alleged threat posed by visitors from the banned countries. And that’s despite the law being largely on the president’s side.
You could see the judges of the Ninth Circuit struggling to find support in the record for the president’s determination about the threat that he contends the travel ban addresses. “How is a court to know if in fact it’s a Muslim ban in the guise of national security justification?” Judge Ronald Gould asked Wall. Is there sufficient evidence that admitting everyone from the six countries identified in the ban would threaten national security sufficient to justify the ban, Gould wanted to know.
Wall replied that the travel ban addresses concerns that Congress articulated after the attacks in Paris. But he offered nothing new to justify the ban, which Neil Katyal, who argued the case for the challengers, noted:
“We’re not here saying that the president doesn’t have emergency powers, national security powers. Of course, he does. The question is, when you have a circumstance like this, when the very evidence that they have pointed to was before the Congress of the United States, and they said, ‘We don’t need this mass, dragnet ban. Instead, we can do something more limited: require visas.’ That is particularly telling.”
Katyal argued that the executive order cites crimes committed by two people who entered the U.S. from Iraq, which is not subject to the travel ban. The order also mentions someone from Somalia, who came to the U.S. as a refugee when he was two years old and committed crimes when he was an adult, Katyal noted.
You start to see why a court might conclude that the White House has not reasoned its way through this one. Or that it really wants to ban Muslims.
Motive matters
Which brings us back to Justice Kennedy. Two years ago, the court ruled that a U.S. citizen cannot challenge the denial of a visa for her non-citizen spouse, an Afghan citizen and former civil servant who resided in Afghanistan. Not only did the government not infringe a constitutionally protected interest of the citizen when it denied the visa, but “to the extent that she received any explanation for the government’s decision, this was more than the Due Process Clause required,” Justice Scalia wrote for the majority.
While Justice Kennedy concurred that the citizen could not challenge the denial, he would not have gone as far as his colleagues. Once the government decides to deny a visa for a “facially legitimate and bona fide reason” (see above), courts will not “look behind” the reasons for the exercise of that discretion, particularly in the area of national security, Kennedy noted.
But in its decision to deny a visa to the non-citizen spouse, the government followed steps prescribed by law, Kennedy noted. So, he reasoned, the non-citizen spouse’s failure to satisfy a condition for admissibility (the spouse worked for the Taliban government), rendered the denial facially legitimate.
Thus, “absent an affirmative showing of bad faith on the part of the consular officer who denied [the non-citizen spouse] a visa,” (there was none) the court will not “look behind” the government’s decision “for additional factual details” that would explain its decision, Kennedy wrote.
The government can claim no such footing that would support the Trump travel ban, the plaintiffs argue. The ban does not turn on a decision by a consular officer to deny a visa, and, they assert, the president’s own statements suggest bad faith that compels the court to examine his motives. In short, motive matters when analyzing action by the government that disregards constitutional guarantees of religious freedom. “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality,” Justice Kennedy wrote for the majority in a 1993 case that involved religious gerrymandering.
The record is likely to lead at least five justices to look behind the justification that the White House has offered. When they do, they will struggle to find support that merits a ban that sweeps as broadly as Trump’s