Friday, February 10, 2017

Appeals Court Sustains Temporary Restraint on Trump Immigration EO

“You got your tricks
Good for you
But there’s no gambit I don’t see through”

Yesterday the U.S. Court of Appeals for the Ninth Circuit unanimously held that the federal trial judge in Seattle who granted a nationwide temporary restraining order (TRO) suspending Trump’s immigration ban executive order (EO) did not exceed his discretion.  The Court of Appeals therefore rejected Donald Trump’s emergency motion.  The per curiam (unsigned, with authorship attributed simply to the court) appellate opinion, styled an “Order” by the three-judge panel, held that the President and official defendants had failed to show that they were likely to establish on appeal of the TRO that the EO was lawful.  In assessing legality, the court primarily focused on individuals’ rights under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, though it also noted (without definitively ruling) that the plaintiff states’ arguments that the EO unconstitutionally discriminated on the basis of religion were serious.  The Court also held that Trump had failed to show that irreparable injury would follow if the trial judge’s TRO were not immediately lifted.

The lawsuit, filed by the states of Washington and Minnesota, challenged three aspects of the EO.  As the appellate court explained, “section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries,” all of which have majority-Muslim populations, as widely observed in the media following issuance of the EO.  Sections 5(a)-5(c) stop the US from accepting refugees for 120 days, afterward requires prioritization of claims based on religious persecution where someone is a religious minority (such as, e.g., Christians from the seven countries at issue), and indefinitely bars refugees from Syria.  Third, section 5(e) of the EO specifies that it is in the national interest to make exceptions to the EO (pursuant to authority in section 3(g)) “when the person is a religious minority in his country of nationality facing religious persecution.”

The district court judge had held a hearing and subsequently entered a nationwide TRO temporarily halting enforcement of the EO, and the Trump administration filed an emergency motion with the Court of Appeals, defending the claimed lawfulness of the order under the Constitution and federal statutes and asking the court to stay the TRO.  The oral argument in the case revealed concerns about the order from all three judges – William C. Canby, Richard R. Clifton, and Michelle T. Friedland – with Canby’s and Friedland’s concerns including worries whether the EO was intended to discriminate on the basis of religions against Muslims; Clifton seemed more skeptical of the latter claim.
Photo: -, AFP/Getty Images

The unanimous opinion arguably reflected this range of opinion.  After a brief analysis of why the Court of Appeals had jurisdiction to review the TRO, the court turned to the states’ standing to sue in federal court over the EO.  Federal case law limits the sorts of disputes that can be heard in the federal courts, limiting them to ones where the plaintiffs have “standing,” roughly meaning a sufficiently concrete stake in the dispute.  Here, the EO directly affects immigrants and only derivatively harms the plaintiff states themselves.  State universities are arms of the state for legal purposes here, and the court concluded that the linkage between the EO and harm to the states was straightforward:  “The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.”  The court therefore concluded the states had standing for the suit to begin with.

The court also held that it had the authority in our constitutional scheme of governance to review the states’ legal claims, emphatically rejecting the administration’s claims that the President’s determinations about the national security necessity of his EO were judicially unreviewable, a point on which the panel had pressed the administration’s attorney at oral argument.  The court conceded that he was entitled to judicial deference in such matters, but invoked a range of Supreme Court precedents to hold that the judiciary nonetheless has an important role to play in ensuring the government acted constitutionally.  These included the George W. Bush-era “War on Terror” case Boumedienne v. Bush.

To decide whether it should stay the trial court’s TRO, the Court of Appeals applied well established case law requiring it to consider four factors.  Those are “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”  Concerning the last factor, the court observed that different aspects of the public interest support each side in the case.  “On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”  But the court had noted that that factor, and the third, only came into play if the party seeking the stay – here, Trump – established both of the first factors.  As noted above, the court held that he had not prevailed on those prongs.

The majority of the court’s legal analysis of the lawfulness or unlawfulness of the EO was devoted to explaining why Trump had not shown his order was likely to be held constitutional on appeal.  And it relied primarily on the Due Process Clause of the Fifth Amendment.  That clause forbids the government to deprive individuals of “life, liberty, or property, without due process of law.”  This clause has a procedural aspect upon which the court was relying; when the government deprives people of a protected liberty interest, for example, it must afford them notice and the opportunity to be heard, that is, “the opportunity to present reasons not to proceed with the deprivation and have [those reasons] considered” by the government.  The EO, of course, did not do so, categorically excluding sweepingly defined classes of people of their previous legal opportunity to enter the U.S. Trump argued that this was not necessary, contending that (as the court put it) “most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.”

This, the court held, was wrong.  Its opinion relied on numerous Supreme Court decisions to show that lots of noncitizens have due process rights concerning their right to travel into or out of the country.  Making the textual point that the Due Process Clause protects “persons,” not just citizens, the court pointed to various classes of persons who do have due process rights relevant here.  These included “certain aliens attempting to reenter the United States after travelling abroad[,]” such as lawful permanent residents (LPRs).  Although the White House counsel reinterpreted the EO not to apply to LPRs after its initial roll-out, the court rejected the notion that this was binding in a way that saved the order from constitutional challenge on their behalf.  That move did not render the case moot because it was not “absolutely clear” that the EO would not once again be applied to LPRs.  Moreover, the court pointed to Supreme Court case law suggesting that beyond LPRs, the EO could be violating the due process rights of “other persons who are in the United States, even if unlawfully; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart; refugees; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” (citations omitted)

Trump’s back-up position was that the TRO was overbroad in that it extended past LPRs, and even beyond “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future[,]” and in that it extended beyond Washington and Minnesota (the plaintiff states) to the entire nation.  The court rejected the former, population overbreadth claim because it would leave unprotected some noncitizens who have viable due process claims.  It rejected the latter, geographic overbreadth claim by invoking the Fifth Circuit Court of Appeals decision sustaining a nationwide injunction against President Obama’s program of Deferred Action for Parents of Americans.  Without affirmatively endorsing that court’s view that “such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy,” the Court of Appeals here said Trump had not shown that the contrary view was likely to prevail.  And, apropos both overbreadth claims, the court said it was not their role to rewrite the EO to save it from its likely unconstitutionality.  Thus, Trump had not established the likelihood that he would prevail on appeal, and so was not entitled to a stay of the trial judge’s TRO.

The Court of Appeals then also flagged the religious discrimination claims pressed by the plaintiff states against the EO, which they contended violated the Establishment Clause of the First Amendment and the Constitution’s equal protection limitation on federal action.  If Judge Clifton had felt particularly strongly about those claims, he might have insisted that any opinion he joined say nothing about the claim beyond ‘we don’t need to talk about it at all because we’re ruling on due process grounds.’  Yet the opinion went there.  It recounted the constitutional principle against religious favoritism embodied in the Establishment Clause.  It sympathetically recounted the states’ argument on this front, specifically affirming the propriety of relying on evidence of religious favoritism beyond the face of the EO, such as “numerous statements by the President about his intent to implement a ‘Muslim ban.’”  And, as noted earlier, it characterized the religious favoritism arguments as raising “serious allegations and present[ing] significant constitutional questions.”  Only then did it say that it would withhold judgment on those issues (as distinguished from the due process issues) until full briefing on the merits of the appeal.

Moreover, the Court of Appeals held that Trump and the other federal defendants failed to show that they would suffer irreparable injury – that could not be addressed with an eventual favorable decision possibly after a full trial – and so was not legally entitled to a stay of the TRO.  The court recognized that combatting terrorism was certainly a powerful governmental interest.  But, it noted: “Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.”  It rejected the government’s claim to superior knowledge of risks of terrorism, rightly noting that the government frequently provides courts evidence under seal, so that their claims can be assessed while secrecy is preserved.  In contrast, the court found that the states had provided ample evidence of the irreparable harms the EO causes, including “that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. ”


It’s not at all clear whether the Trump administration will seek review of the Ninth Circuit Court of Appeals ruling in the Supreme Court.  They well might, on the theory that they have little or nothing to lose.  At worst, the Supreme Court would affirm the Ninth Circuit Court of Appeals, leaving the status quo (pre-EO) in place.  On the other hand, if Trump can convince five Justices of the Supreme Court that the TRO was overbroad in a way that should be reigned in, Trump might claim a victory about which he could crow in public, in social media.  It’s not clear that he would be able to – particularly with revelations that he is signing executive orders without appreciating what they do.  The doctrine of judicial deference to the Executive presupposes a reasonably competent or properly functioning president, which it regrettably is increasingly unclear the United States enjoys today.

Sunday, November 20, 2016

Sanitizing Scalia

“Memories to be erased
And nasty old stuff you’ve been hiding”

The Harvard Law Review recently published its issue dedicated in memoriam to the late Supreme Court Justice Antonin Scalia.  I know the point of such exercises is to say nice things about the person memorialized.  But I would hope that even an academic such as Martha Minow, Dean of the Harvard Law School, whose position admittedly requires great diplomacy and efforts not to alienate a broad swath of students, faculty, staff, and alumni, would manage to eulogize Scalia without painting a false picture of her subject.  Unfortunately, I can’t recognize the Scalia she describes.

I don’t mean the personal aspects of Scalia that she reports in her contribution.  It’s her depiction of Scalia’s jurisprudential legacies that is unrecognizable to me as a constitutional law professor.  According to Dean Minow, among several of Justice Scalia’s legacies “is his commitment to liberty even for individuals whose actions deviated from his own values.”  Fortunately, I was not drinking anything when I first read this, so I didn’t short out my computer with a spit take.  Minow’s characterization is about as far from my understanding of Scalia as one can get.

The only evidence she offers to support her claim that Scalia was committed to protecting the liberty of people who had different values was his 1989 vote in Texas v. Johnson to uphold Joey Johnson’s constitutional right to burn a flag in protest.  Now, while Johnson was arrested after this year’s Republican National Convention for burning a flag in protest, I’ve seen no evidence that this is conduct in which he engages on anything like a daily basis.  Justice Scalia’s vote to protect it therefore wasn’t very costly to his conformist preferences, shielding only infrequently occurring behavior.

Contrast the Justice Scalia whose legacy I know too well, starting with a different case where Texas was squelching freedom.  Scalia dissented from the Supreme Court’s 2003 decision in Lawrence v. Texas that held unconstitutional a law that criminalized consensual adult sexual activity, between two men (as in that case) or two women.  That law sought to control the intimate conduct of people of the same-sex, even if they had been in a long-term committed relationship.  Justice Scalia could not accept that the Constitution protected our liberty to make such life-shaping choices.

Or consider Roe v. Wade, which in 1992 in Planned Parenthood v. Casey the Supreme Court sustained in modified fashion, retaining a significant measure of constitutional protection for the right to choose to terminate one’s pregnancy.  Justice Scalia dissented there, arguing that the Constitution affords no special protection for abortion rights (beyond the universal constitutional requirement that government not act wholly irrationally) and that the Court should overrule Roe.  Again, he showed no commitment to women’s liberty to determine something so fundamental about the direction of their lives in his Casey dissent.

Concurring in Washington v. Glucksberg, Justice Scalia voted against constitutional protection for a right of terminally ill patients to seek to enlist a willing physician’s assistance in ending their lives on their own terms.  Writing the lead opinion in Michael M. v. Gerald D., Justice Scalia rejected a claim that the Constitution protected the liberty interests of an unmarried father when the mother of the child he sired was married to a different man, even though the unmarried father played a role in the child’s upbringing in her early years.  Dissenting in Troxel v. Granville, Scalia argued that the Constitution did not protect parental rights, so that in his view a court could order a parent to allow someone visitation with her child based on what many members of the Supreme Court majority thought a mere disagreement over what would be overall best for the child.


Whatever his other accomplishments, Justice Scalia was hardly a friend of the liberty of people whose views he did not share.  It does neither him nor the country any good to pretend otherwise.  Sanitizing Scalia is, rather, perilous, particularly in this current political moment where facts are too commonly ignored and even denied.

Wednesday, November 9, 2016

Trump and the Promise of LGBTQ Equality

I’ve always got my head in the clouds
Hope that I could find
One of them that’s silver-lined

As I write, it appears that Donald J. Trump will take office as the forty-fifth President of the United States.  Some (many?) people, myself included, deeply feared this and are anxious or worse about the prospect.  So, in an effort to help myself confront this new reality, I offer this brief exploration of one possible way to deal with it.

“As your president, I will do everything in my power to protect LGBTQ citizens,” Trump promised in his nomination acceptance speech to the Republican National Convention in July 2016.  Americans should hold him to that promise.  It doesn’t mean, as Trump seemed to think, we should embrace blatantly unconstitutional anti-Muslim immigration policies.  But it could and should mean a great deal.

(Reuters/Carlo Allegri)

Trump’s promise to protect LGBTQ persons – and, yes, I’m deliberately overlooking his rhetoric extending solicitude to citizens, since the Constitution guarantees equal protection of the laws to persons, not just citizens – means he should support the Equality Act and use the power of the presidency to help it become part of the law of the land.  In 2000 he publicly supported amending the Civil Rights Act of 1964 to ban sexual orientation discrimination (see his interview with The Advocate here); the Equality Act would accomplish much the same, but in a more comprehensive matter that would also protect against anti-transgender discrimination and that leaders on these issues in Congress believe would be most effective.

Trump’s promise to protect LGBTQ persons means he should abandon his intention to nominate Supreme Court Justices who would overrule the Court’s 2015 Obergefell decision, which held that the Constitution forbade government to exclude same-sex couples from legal marriage (aka “civil marriage”) on the same terms and conditions civil marriage is offered to different-sex couples.  The interaction of civil marriage and the U.S. legal order generally may be criticized on various grounds – why should any of us have to count on employment benefits that may or may not be offered in order to secure a basic right such as healthcare for us and our marital partners and children?  But so long as that is how the U.S. system is structured, LGBTQ people and our families will not be protected, and certainly not be protected equally with heterosexually identified persons, if we are denied access to or recognition of our marriages.

Trump’s promise to protect LGBTQ persons also means he should reject efforts to exempt us from the benefits of our state, local, and national antidiscrimination laws.  He should not repeal executive orders that forbid sexual orientation and gender identity discrimination, which would expose us to the harms of the discrimination those orders are designed to prevent.  He should not support the so-called First Amendment Defense Act, which would grant a government sanctioned right to discriminate to people who disapprove of the marriages or other relationships of LGBTQ persons.  Such targeting of us is the opposite of protection.


There is much, much more that Donald Trump would have to do as President to live up to his promise to “do everything in my power” to protect LGBTQ persons.  Let us hope that he does.  And more than that, let us insist that he does.  Let us never let him forget his words.  Some of Trump’s campaign pledges were unjust; some were unconstitutional.  But the pledge to protect LGBTQ persons to his utmost extent is in itself noble, worthy of our constitutional order.  We all need to press our representatives in government to hold Donald Trump to this promise of equality.