Saturday, March 18, 2017

Pay No Attention to the Man Behind the Curtain: the Great Oz has spoken. . . "

When a presidential candidate promises to ban Muslims from the country as his first act in office, should the courts be allowed to investigate the motivations of an Executive Order barring entry to nationals of six Muslim countries, ostensibly to keep out terrorists? Should courts be allowed to look behind the curtain of an Executive Order?

During his first week in office--need we be reminded--President Trump issued his Travel Ban 1.0,  a wide ranging order barring everyone from seven Muslim countries from entering the United States for three months pending further review, suspending the admittance of  refugees for four months, barring the admission of refugees from Syria indefinitely, and directing a preference for "religious minorities" in those areas. Travel ban 1.0 left hundreds stranded in the immediate aftermath of its poorly implemented rollout.

After a few days of chaos, a federal court in Washington State issued an order stopping further implementation of Travel Ban 1.0 until a hearing could be completed to evaluate its constitutionality.  On February 9, 2017 the 9th Cir. Court of Appeals affirmed the nationwide stay of Travel Ban 1.0 until a hearing could be held on the merits.  That order is now moot.

Travel Ban 2.0

On March 6, 2017 President Trump signed a replacement executive order, Travel Ban 2.0. This new order retains key elements of Travel Ban 1.0, but also includes significant modifications designed to make it "court-proof."  Travel Ban 2.0 exempts U.S. Green Card holders, persons who have been granted a visa, or otherwise granted permission to enter the U.S.

Travel Ban 2.0 dropped Iraq from its list of targeted countries altogether. It no longer bars refugees from Syria indefinitely, but it continues to suspend the U.S. refugee program for 120 days and it continues to ban travelers from Iran, Syria, Yemen, Somalia, Sudan and Lybia for 90 days.

On March 10, Ilya Somin  noted that Travel Ban 2.0 continues to be driven by hostility to Muslims and that its security rationale continues to be extremely weak. Travel Ban 2.0 continues to assert "nearly unfettered authority by the federal government," he said. This week two federal trial courts, in Hawaii and Maryland, have agreed with Somin.

International Refugee Assistance Project v. Trump

In the Maryland case, the court blocked implementation of Travel Ban 2.0 until a hearing can be held on its constitutionality, relying in part on 8 USC 1152(a) of the Immigration and Nationality Act, and relying in part on the Establishment Clause of the constitution. In doing so, the court explicitly found that under the circumstances of this case, the courts may look behind the curtain for improper motivation. 

A. The President lacks Statutory Authority for his Order: 

Section 1152(a) states that "no person shall be . . . discriminated against in the issuance of an immigrant visa because of his . . . nationality, place of birth, or place of residence." Although the president has broad powers to suspend the entry of "any class of aliens as immigrants" that he or she deems detrimental to the interests of the United States (8 USC 1182(f)) this power is circumscribed by the more specific requirement of 1152(a) that the government may not discriminate in denying a visa based on nationality or place of residence.  Because Travel Ban 2.0 denies visas based on nationality and place of residence, it is unlawful. 

Section 1152(a), said the court, was adopted expressly to abolish the 'national origins system' of immigration that was designed to "maintain, to some degree, the ethnic composition of the American people." President Johnson sought this reform because the national origins system was at odds with "our basic American tradition" that we "ask not where a person comes from but what are his personal qualities."

B. Travel Ban 2.0 Violates the Establishment Clause:

The Maryland court also relied on the Establishment Clause of the first amendment to the constitution. A government action is subject to challenge under the Establishment Clause if (1) it is animated by religious animus, (2) if its principle or primary effect is to enhance or inhibit religion, or (3) if it fosters an excessive government entanglement with religion. Citing Lemon v. Kurtzman 403 U.S. 602 (1971).

How do courts determine whether a governmental action (like Travel Ban 2.0) is animated by religious animus? The court looked at the 2005 U.S. Supreme Court decision in McCreary County v. ACLU of KY: "In determining purpose, a court acts as an 'objective observer' who considers 'the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.'" In other words, the mere identification (or claim) of a valid secular purpose does not satisfy the test. Courts will look at objective signs. It's something that courts do "all the time."  

In this case, of course, there is ample evidence of religious animus from candidate Trump's oft repeated promise that, as one of his first acts as President, he would bar Muslims from the country. There is evidence in the statements of Trump representatives that Travel Ban 1.0 was drafted to implement that promise (Giuliani), and that Travel Ban 2.0 was meant to serve the same underlying purpose, with only minor technical adjustments made in order to humor the courts (Miller). The Maryland court's opinion reviews a long litany of public statements made by various Trump administration figures, both before and after the election, that suggest that both Travel Ban 1.0 and Travel Ban 2.0 are motivated by religious animus and therefore unconstitutional. 

Unlike 31-year old White House aid Steven Miller, the courts so far have been firm in holding that a fundamental assault on the constitution can not be cured with "minor technical" adjustments.  

Kleindienst v. Mandel

In defending Travel Ban 2.0, the administration's lawyers point to Kleindienst v. Mandel (1972). There the court was confronted with a statute that generally denied a visa to anyone known to advocate for world wide communism, subject to the Secretary of State's discretion to grant waivers in individual cases. Mandel was a Belgian journalist who advocated for the imposition of world wide communism.  He had previously applied for and been granted entry visas pursuant to special waivers. The Nixon State Department refused to grant an exemption.  Professors at various universities where Mandel was set to speak sued, alleging that their First Amendment rights to hear and engage with Mandel were infringed. Justice Blackmun writing for the court, having recognized a First Amendment interest, concluded: "when the Executive exercises this power (to grant an exemption) negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." 

"See," say Travel Ban 2.0 advocates, pointing at Mandel, "when the Executive Order professes it is motivated by legitimate concerns of terrorist infiltration, the court's can't look behind the curtain of this assertion for religious animus; no matter what the president may have said on the campaign trail, and no matter what Steven Miller and Rudy Giuliani may have said since, the courts must take the secular purpose of the Executive Order at face value." 

Most judges aren't buying this argument. 

The Maryland court in halting Travel Ban 2.0, like the 9th Circuit in Washington v. Trump (halting implementation of Travel Ban 1.0), distinguished Blackmun's statement in Mandel. This not-looking-behind-the-curtain standard "is most typically applied when a court is asked to review an executive officer's decision to deny a visa," said the court.  "The Mandel test. . . does not apply to the promulgation of sweeping immigration policy at the highest levels of the political branches. International Refugee Assistance Project v. Trump (internal quotes omitted).

The Devil's Advocate

One judge who thinks that courts should not be looking behind the curtain in reviewing Travel Ban 2.0 is Judge Jay Bybee of the 9th Circuit.  Judge Bybee was so incensed by the action of the three judge panel in Washington v. Trump (upholding the restraining order on Travel Ban 1.0) that he penned a 26 page dissent from a denial of the request of "one judge" to reconsider and vacate the published order, despite the fact that the order is moot and that no party had asked that the published order be vacated. 

"Pay no attention to that man behind the curtain," says judge Bybee, "the Great Trump has spoken (and Travel Ban 2.0 is not facially invalid)." Bybee was joined in his protest by four circuit judges: Kozinsky, Callahan, Bea, and Ikuda. 

Judge Bybee, of course is infamous for being one of the authors of the Bush torture memos. In August 2002, Bybee, then with the Office of Legal Counsel in the Bush Justice Department, issued a memorandum justifying the use of torture to extract information from Qaeda operatives. If the President (or vice President?) want to torture in order to fight terrorism, lawyers should facilitate this?  Bybee  "provided complex definitions of torture that seemed devised to allow interrogators to evade being charged with that offense," reported the New York Times.   

Consistent with his approach in the torture memos, Bybee concludes that Mandel sets the standard of review for the courts in this case, and the standard requires that the courts not look behind the curtain of Travel Ban 2.0. 

Bybee's position, however, amounts to a complete abdication of judicial oversight. If judges are going to abdicate their role of examining motives of religious animus in a case as egregious as this, then we are truly on the road to presidential unaccountability.

The courts have been looking behind the curtain of Travel Ban 2.0 and they must continue to do so.

Follow me on Twitter @RolandNikles

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