Only a few months into his presidency, President Trump has issued two Executive orders attempting to suspend refugees and certain foreign nationals from entering the United States. After the Ninth Circuit Court of Appeals upheld a decision temporarily restraining the first order, Trump went back to the drawing board and issued a second order, which was similarly blocked. But Trump has defended this second order and pursued appeals through the courts. Two appellate courts, and potentially the Supreme Court, are expected to rule on the order soon. Though the revised order cleared up some of the legal deficiencies of the first, there are still many unresolved legal questions and constitutional issues at stake in this ongoing legal battle.
President Trump signed the first order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” on January 27, 2017. The order explained that “[n]umerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.” It also noted that certain foreign countries were facing “war, strife, disaster, and civil unrest,” making it difficult to vet travelers, and that U.S. immigration procedures must be “vigilant” to screen out potential terrorists.
To this end, the order barred all nationals from seven predominantly Muslim countries—Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen—from entering the United States for 90 days. The order also suspended the entry of refugees for 120 days and stopped the admission of refugees from Syria indefinitely. Once the refugee program resumed, the order said the government would “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion” in the country.
Legal organizations and individuals across the country were quick to challenge the ban as violating several constitutional provisions, including the Fifth Amendment’s Due Process Clause and the First Amendment’s Establishment Clause, as well as federal law. Four federal judges—a judge in Brooklyn, a judge in Virginia, a judge in Seattle, and a judge in Boston—issued temporary restraining orders (TROs) blocking the ban from being implemented. These decisions enjoined the government from “removing individuals” who had arrived in the United States with valid visas or refugee status. But they did not admit certain travelers into the country, nor ruled definitively on the overall constitutionality of the order. In February 2017, a Ninth Circuit panel upheld the Seattle judge’s order on due process grounds and rejected the Trump administration’s argument that the President has “unreviewable authority to suspend the admission of any class of aliens.”
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On March 6, 2017, President Trump issued a revised order deleting the language about giving preference to religious minorities and removing Iraq from the list of banned countries. Each remaining country on the list, the new order explained, has been designated to be “a state sponsor of terrorism” and has been “significantly compromised by terrorist organizations, or contains active conflict zones”; this reduces the chance of the country’s government to properly vet or share information about travelers coming to the United States. Still, the order allowed for certain exceptions and case-by-case waivers. It then explained why Iraq was “a special case”: despite Iraq being an active conflict zone, the “close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.” And as the Wall Street Journal notes, other reasons for excluding Iraq included that Iraqi travelers are relatively easy to authenticate because they must submit to biometric documentation to get passports.
This second order was challenged again, but courts have been more divided in their rulings. Federal judges in Maryland and Hawaii issued TROs against the new order on similar bases. Meanwhile, a federal judge in Virginia declined to do so, saying that the new order is likely to pass constitutional muster since it is now free of explicit religious discrimination, offered a national-security rationale for the six countries included and provided exceptions for individuals in the form of waivers. Trump is appealing the Maryland and Hawaii rulings to the Fourth and Ninth Circuits. There are many legal issues bound up in these challenges.
- Can a district judge issue a nationwide injunction?
The first issue concerns the legitimacy of a nationwide injunction issued by a single district court judge. The national injunction as an equitable remedy is a recent phenomenon; an injunction typically restrains a defendant’s conduct vis-à-vis the plaintiff, not vis-à-vis the world. But in recent years, lower federal courts have begun to issue nationwide injunctions more frequently. For instance, in Texas v. United States (S.D. Tex. 2015), a district court judge issued a nationwide injunction against Obama’s “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) program; the Fifth Circuit upheld it and a divided Supreme Court left the ruling—and injunction—in place.
As the Congressional Research Service notes, federal courts aren’t necessarily authorized to issue a nationwide injunction, and the Supreme Court has not explicitly opined on the practice. But the Court has stated that lower courts “may command persons properly before it to cease or perform acts outside its territorial jurisdiction,” though it also warned that courts should not issue a remedy any broader than necessary. In the Texas case, the Fifth Circuit said that a nationwide injunction was appropriate because federal immigration laws are designed to function as a uniform system, and an injunction confined to Texas would not redress Texas’s alleged injury—losing millions of dollars by having to issue state-subsidized drivers licenses to DAPA beneficiaries—because those beneficiaries can move from state to state.
Several rulings blocking Trump’s order—including both the Hawaii and Maryland rulings being appealed—have also been applied nationwide under similar rationale and by citing to Texas. In her ruling on the first order, however, Virginia Judge Brinkema only applied it to Virginians, “to avoid any claim that” it her injunction was “defective because of overbreadth.”
Recent scholarship has pointed out the potential concern for forum shopping for national injunctions. The Court may eventually weigh in on the legality of the nationwide injunctions in these two cases.
- Do plaintiffs have standing?
To bring a live “case or controversy,” a plaintiff must have standing under Article III. To satisfy Article III’s requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Hawaii’s Judge Watson found that both the individual plaintiffs (like an imam whose mother-in-law has been prevented from travelling) and the state had standing. The imam suffered harm from the denial of his relative’s ability to visit, while state universities would be adversely affected by the prevention of students and researchers from attending (and dozens of other universities have filed an amicus brief in the Fourth Circuit case supporting the state’s claim). The judge found there would be injury to Hawaii’s tourism industry as well.
But the Justice Department lawyers defending the order have argued that none of those plaintiffs had standing to challenge the ban because they are not suffering imminent, irreparable harm. Assuming the order does take effect, the imam’s mother-in-law could apply for a waiver, for instance, which would be incorporated into the existing visa interview process. Moreover, as the Court has held in cases like Landon v. Plasencia (1982), those looking to travel initially to the United States do not have any constitutional rights to assert for themselves. And dissenting Ninth Circuit Judge Bea argued, “States are not proper party plaintiffs to make claims under the Due Process Clause, because they are simply not ‘persons’ protected by the Fifth Amendment.”
- What are the effects of Trump’s statements?
Under an Establishment Clause challenge, as some commentators have noted, the second order removes the “the smoking gun—the express carve-out for certain religious minorities.” But the other issue is the extent to which Trump’s campaign rhetoric and other statements (and those of his advisors like Rudy Giuliani) may be taken into account to prove evidence of discriminatory intent. During his presidential campaign, Trump called for “a total and complete shutdown of Muslims entering the United States” until safety could be assured. Later, Trump said he wanted to prioritize Christian refugees.
Some who have challenged the order argue that Trump’s comments form a “single causal chain” from a desire to ban all Muslims to the latest order. Virginia Judge Brinkema, ruling on the first order, wrote: “Just as the Supreme Court [in McCreary] has held that ‘the world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office.” Judge Chuang in Maryland then wrote: “The history of public statements continues to provide a convincing case that the purpose of the Second Executive order remains the realization of the long-envisioned Muslim ban.” Judge Watson wrote: “A reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose.”
But Ninth Circuit Judge Kozinski, dissenting from a denial of rehearing en banc, rejected this approach: “No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected.” He warned that this could chill campaign speech and result in an unworkable standard for future litigation. And Judge Trenga, the federal judge in Virginia, decided that Trump’s statements did not forever taint any future orders: “The Court cannot conclude . . . that these statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority.”
- What level of scrutiny applies?
If those challenging the order prove their Establishment Clause claim, for example, then it may need to meet strict scrutiny, or be narrowly tailored to achieve a compelling governmental interest and the least restrictive means possible. Given the broad sweep of the order, this may be hard to do.
Lemon v. Kurtzman (1971) is the benchmark for evaluating whether governmental action is consistent with or at odds with the Establishment Clause. According to the Lemon test, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. As discussed above, based on Trump’s own statements, Judge Watson found that the order failed the first test—it did not have a primary secular purpose.
The government, however, denies that the order was religiously motivated. It points out that the text is religiously neutral text—it applies to all nationals of those six countries, regardless of religion—and that “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population.” It argues that in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers, and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Legal scholar Josh Blackman has discussed in depth the difficulties of applying the Establishment Clause framework to immigration law.
Even if the order does not violate a fundamental right or constitutional provision, however, it can still be challenged on rational basis grounds. But in the immigration and national security context the plenary power doctrine applies with full force, which means courts typically give strong deference to the executive’s decision making as long as there is a “facially legitimate and bona fide reason” for the action. Under such deferential review, it may be hard to find the President’s order unconstitutional, particularly since the order enumerated several reasons for it. As the Ninth Circuit dissenters wrote: “Even if we have questions about the basis for the President’s ultimate findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.” Judge Trenga similarly wrote: “The issue is not whether [the executive order] is wise, necessary, under- or overinclusive, or even fair. It is not whether [the order] could have been more usefully directed to populations living in particular geographical areas presenting even greater threats to national security or even whether it is politically motivated. Rather, the core substantive issue of law . . . is whether [the order] falls within the bounds of the President’s statutory authority.” Notably, the Court has not yet struck down an immigration law outright, no matter how facially discriminatory (as in Fiallo v. Belle (1977)).
Others argue, however, that the national-security justification for the order is neither rational nor legitimate. For instance, a Department of Homeland Security report on the countries involved found that citizens from those countries are “rarely implicated in U.S.-based terrorism” and that citizenship itself is an “unreliable indicator of terrorist threat to the United States.” Most of the 19 hijackers on the planes during the 9/11 attacks were from Saudi Arabia, while others were from the United Arab Emirates, Egypt, and Lebanon. None of those countries are on the visa ban list.
The arguments concerning Trump’s discriminatory animus therefore may come into play here again in evaluating the rationality of the order. In Kerry v. Din (2015), Justice Kennedy’s controlling concurrence said that the “facially legitimate” standard might not apply if an applicant plausibly alleged “an affirmative showing of bad faith.” Justice Kennedy might be the swing vote in this case, and may be more willing to entertain arguments that there was bad faith behind the order.
And many legal commentators have noted that we now live in a different constitutional era from when older plenary powers cases were decided. In Korematsu v. United States (1944), the Court deferred more blindly to the national security assertions by the executive; but recently, the government admitted its errors in that case. A decision on the Trump order might offer the chance for the Court to not only narrow the plenary power doctrine and assert new constitutional norms in the immigration context, but also to finally overturn Korematsu.
- If the case gets to the Supreme Court, how might Judge Gorsuch affect the outcome?
On April 7, 2017, the Senate officially confirmed Judge Neil Gorsuch to fill the late Justice Scalia’s empty seat on the Supreme Court. During his confirmation hearings, senators pressed the judge on what he thought about the order. Judge Gorsuch declined say explicitly how he would rule on it, but suggested he might review it in light of the Youngstown framework, which suggests that the President’s power is at its maximum when he acts pursuant to Congress’s express or implied authorization, but at its “lowest ebb” when he acts contrary to congressional limitations.
As the Ninth Circuit dissenters noted, Trump’s order suspending the entry of certain aliens “was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations.” In the Immigration and Nationality Act of 1952 (INA), Congress delegated authority to the President to suspend the entry of “any class of aliens” he deems appropriate. But the INA also prohibits the executive branch from discriminating against someone applying for a visa “because of the person’s race, sex, nationality, place of birth, or place of residence.” It’s unclear which provision holds greater weight, demonstrating that even under Youngstown, the constitutionality of the order is a close question.
Lana Ulrich is associate in-house counsel at the National Constitution Center.
