Masking White Supremacy

“They reached for tomorrow / But tomorrow’s more of the same”

In its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Republican-appointed supermajority of the Supreme Court held that the use of race in the undergraduate admissions programs of Harvard College and the University of North Carolina was unlawful under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, respectively. Among other problems, Chief Justice Roberts’s opinion for the Court in SFFA hides what the majority justices are doing – hides how it is changing the applicable constitutional law, by misrepresenting that law – and its reasons for what they did may rest on what they themselves would call racial stereotypes and/or an unvoiced belief in the superiority of white people. 

The majority justices claim to be applying the rules from Supreme court precedents for evaluating equal protection challenges to race-based affirmative action in higher education admissions. The majority opinion says, using a past tense, that “we have permitted race-based admissions only within the confines of narrow restrictions” (emphasis added). Summarizing, it states: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and – at some point – they must end.” While it has the chutzpah to accuse Justice Sotomayor’s dissent (joined by Justices Kagan and Jackson) of disregarding stare decisis and “want[ing]” the Court’s equal protection law “to be different” than its precedent shows it to be and “wrench[ing that] case law from its context,” in fact, the majority is applying new rules, “moving the goal posts” as the dissent puts it at one point.

 

The changes in the governing law the majority opinion wreaks are apparent in its arguments against Harvard’s and UNC’s admissions programs. It contends that the defendant schools’ justifications for their consideration of race in admissions served purposes too “amorphous” to satisfy strict scrutiny – but that reasoning would equally have doomed the University of Michigan law school’s admission policy that the Supreme Court upheld in Grutter v. Bollinger in 2003, a case upon which the majority opinion leans heavily. And the majority’s amorphous purpose reasoning would seem wholly to preclude any use of applicant’s race in admissions, thus necessitating the overruling of Bakke v. Regents of the University of California (1978), Grutter, Fisher v. University of Texas at Austin (2013) (Fisher I), and Fisher v. University of Texas at Austin (2016) (Fisher II) – something the majority does not fess up to doing. And thus as the dissent in SFFA notes, “the Court does even attempt to make the extraordinary showing required by stare decisis” before overruling those decisions.

 

But overrule it necessarily does, as consideration of the majority opinion’s reasoning about a ban on using race as a negative makes indisputable. Without any quotation or even citation, the majority asserts that “our cases have stressed that an individual’s race may never be used against him in the admissions process.” Why did the majority maintain that Harvard’s and UNC’s admissions practices violated this stricture, even though the schools treated the race of certain underrepresented minority applicants as a plus in the admissions process? Because “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” This means that colleges and university cannot consider race at all in admissions. And that holding is incompatible with the holdings of Bakke, Grutter, Fisher I, and Fisher II, necessarily overruling them. But because the Court, as the dissent accurately notes, does not attempt to justify this overruling, it may blunt the force of any criticisms it might endure. Were it widely understood by the public that, as with the Dobbs decision’s express overruling of Roe v. Wade last year, the Court with its new composition is again overruling constitutional precedent that has structured life in the U.S. for decades, the majority might be exposed to sharper objections from more quarters.

 

But not only does the majority opinion in SFFA mask what the majority is doing, its reasoning and lacunas therein also obscure why the Justices may be doing it. The majority deems it disqualifying that the policies at Harvard and UNC do not have a “logical end point” (quoting Grutter). The majority interprets those policies as “promising to terminate their use of race only when some rough percentage of various groups is admitted,” thereby “effectively assur[ing] that race will always be relevant.” (quoting City of Richmond v. J.A. Croson Co. (1995)). But how would that be the case? The majority apparently presupposes that it would never be the case that a race-blind admissions process could produce student bodies that, for example, approximately mirror the demographics of a given population (that of the state where a college is located, say, or that of the U.S. as a whole), even, I assume, in a future, racially egalitarian U.S. But why not? The Court has in the past criticized as “completely unrealistic” what it believed was the city of Richmond’s “assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.” But why does the majority’s contrary decision not reflect an assumption – a “stereotype” about racial groups of a type seemingly condemned by the majority’s reasoning in this case – that they would, in an egalitarian society, not have similar interests in various fields?

 

One possible answer is that the majority believes that (non-Asian) minorities will never achieve at the levels that white people do, that (non-Asian) minority students would never (without consideration of race) be admitted to competitive universities on the “merits” at comparable rates. This is not an attitude unknown to U.S. Supreme Court justices, including one the SFFA majority treats as a reliable source on the meaning of the Equal Protection Clause, the first Justice Harlan. Harlan, who dissented from Plessy v. Ferguson’s upholding a state law requiring railroads to segregate black and white passengers on railroad cars (on the ground that separate but equal accommodations would satisfy equal protection). The majority quotes Justice Harlan’s Plessy dissent for the claim that “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan, in the very passage the majority quotes (and in language the majority reproduces), was condemning legal measures reflecting a belief in a “superior, dominant, ruling class of citizens,” and a correlative belief in an inferior class, a “caste.” But when it comes to his actual racial views, the majority doesn’t recount them.

 

What else did Harlan say in his famed Plessy dissent (besides a detour about the inevitable alienness of “the Chinese race”)? “Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.… The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.” 

 

If that is what they believe (and it could explain why they don’t think racial groups in American will ever even “roughly” be “qualified” for admission to at least elite universities), the majority justices may have learned not to say that part aloud, learned not to state publicly that the white race will always be dominant. They will omit this from their adulation of Justice Harlan. They will not repeat the mistake – condemned now by history – of people like Judge J. Whitfield Davidson, who in the wake of the Supreme Court’s decisions in Brown v. Board of Education (I and II) said publicly: “[T]he white man has a right to maintain his racial integrity and it can’t be done so easily in integrated schools.” But as a proposition about the beliefs of a majority of justices who have repeatedly made it harder to redress racial discrimination even in areas as fundamental as voting, who regard it (as the SFFA opinion quotes) as “‘sad’” were “each identifiable minority assigned proportional representation in every desirable walk of life” (emphasis added), and who seem utterly convinced that in educational achievement that would not be possible without race-based affirmative action, such sociological white supremacy is, sadly, not unthinkable.

 

Title VII Means What It Says, Supreme Court Rules, Cheering LGBT Workers

“But you got dreams

He’ll never take away”

In Bostock v. Clayton County, the U.S. Supreme Court ruled today that firing employees because they are “homosexual or transgender” violates the ban on sex discrimination in Title VII of the Civil Rights Act of 1964, the major federal employment discrimination statute. This is a position LGBT people have taken since shortly after the statute was enacted; it is a position long advocated by numerous legal scholars, including me. It is the interpretation of the statute that was prevailing among more recent lower court decisions, in contrast to older judicial opinions. By embracing what Justice Gorsuch, writing for the six-member majority including the more liberal Justices (Ginsburg, Breyer, Kagan, and Sotomayor) and Chief Justice Roberts, considered the “ordinary public meaning” of the words of the statute when Congress passed it in 1964, the Court has assured that countless people in the U.S. have legal protection against anti-LGBT workplace discrimination, even in states that have not themselves enacted express bans on sexual orientation or gender identity discrimination.

The Court’s decision in Bostock also has potentially much broader application. Many other statutes prohibit sex discrimination. The Bostock decision is about one specific statute, Title VII, so it does not directly, immediately require that other statutes banning sex discrimination also reach sexual orientation and gender identity discrimination. But the reasoning in the majority opinion in Bostock could well lead the Supreme Court to that conclusion in further cases. If so, then it might well rule that the Trump administration’s attempt to roll back an Obama era regulation under the Affordable Care Act (ACA), which until Friday interpreted the ACA’s ban on sex discrimination to reach sexual orientation and gender identity discrimination, is contrary to the statute and legally void.

In addition, the constitutional guarantee of equal protection of the laws has been implemented by judicial doctrine giving government more or less deference when courts review different forms of government discrimination. Age discrimination is upheld unless the reviewing court concludes the plaintiff showed the government lacked a rational basis for its action; rational basis review is a very easy standard for the government to meet. But sex discrimination gets less deference, with courts supposed to uphold it only if the government discrimination proves that its action survives a form of heightened review often called intermediate scrutiny. It’s not enough there to have a rational basis; the discrimination must serve not just a legitimate purpose but one the courts will judge “important,” and the sex discrimination cannot just be loosely connected to the purpose in any “rational” way; rather, the discrimination must be “substantially related” to the discrimination. This is a much more demanding standard, one difficult for government actors to meet. Although Bostock was grounded in the meaning of a statutory text that proscribes “discrimination” “because of” “sex,” it would not be a stretch to see the Supreme Court rule that the Bostock reasoning shows that the constitutional concept of sex discrimination embraces sexual orientation and gender identity discrimination. This would then extend protection against governmental discrimination under the Constitution even where statutes don’t reach. That could have enormous benefit for LGBT people in a variety of contexts, including the federal government’s transgender military service ban.

Is It the End of the Line for Charlie Craig & David Mullins’s suit against Jack Phillips?  Masterpiece Cakeshop as Bush v. Gore

“Why leave me standing here?

Let me know the way”

A number of commentators have already noted a similarity between the Supreme Court’s decision yesterday in Masterpiece Cakeshop and its decision in 2000 in Bush v. Gore.  Both opinions self-consciously frame their judgments in narrow terms, raising a question whether they provide much if any guidance for other similar disputes.  In holding that the presidential election recount in Florida deprived voters of equal protection of the laws, the Court’s per curiam (“for the court,” unsigned, with authorship attributed to no specific Justice) opinion in Bush v. Gore stated:  “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  In Masterpiece Cakeshop, the introduction of the Court’s opinion concludes: “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the [Colorado Civil Rights] Commission’s actions here violated the Free Exercise Clause; and its order [directing the bakery not to discriminate against same-sex couples such as Charlie Craig and David Mullins] must be set aside.”  Both these pronouncements have supported concerns that the Court is treating its authoritative declarations of law as being (to borrow Justice Owen Roberts’s words in dissent from Smith v. Allwright (1944)) in “the same class as a restricted railroad ticket, good for this day and train only.”  People could long debate whether those, or other, instances are appropriate judicial minimalism, examples of the Supreme Court not deciding more than it needs to, or if instead they are unhelpful punting, ducking hard constitutional issues on which the nation needs definitive guidance.

But there’s another respect in which the Court’s decision in Masterpiece Cakeshop resembles its ruling in Bush v. Gore.  Both cases not merely vacated but “reversed” the judgments of the courts below.  Bush v. Gore held that the election recount ordered by the Florida Supreme Court violated that state’s voters’ right to equal protection of the law; Masterpiece Cakeshop held that the remedial order entered by Colorado’s Commission violated the baker Jack Phillips’s right to the free exercise of religion.  So, both decisions direct outcomes in the suits at issue.

But, in another point of commonality, it’s not clear these Supreme Court reversals had to/have to end the litigation at issue. In Bush v. Gore, the U.S. Supreme Court thought that after its ruling no recount would be possible consistent with Florida law and the notion that Florida election law contemplated finishing recounts by December 12, a so-called “safe harbor” date regarding slates of electors.  But in addressing that earlier, the Florida Supreme Court was talking about earlier phases of electoral disputes (“protests”), not the kind of electoral “contest” that was at issue in Bush v. Gore.  It should have been open to the Florida Supreme Court on remand to say, ‘the U.S. Supreme court misunderstood our opinion and misinterpreted Florida law, so on this election contest, let’s have a recount now that addresses SCOTUS’s equal protection concerns and gets our electors selected before the (later) time Congress actually will count electoral votes.’  It did not do so, perhaps intimidated by SCOTUS’s per curiam opinion.

In Masterpiece Cakeshop, the Supreme Court was even less forthcoming about the remedy. It reversed the court below, finding a constitutional violation in the Commission’s order where that court had seen none.  It specified that “the order must be set aside” and, more comprehensively later, “the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.” (my emphasis)  But the Supreme Court did not hold that Colorado’s Anti-Discrimination Act (CADA) could not be applied against the baker and the cakeshop; SCOTUS only held that it could not be applied with hostility toward religion.  And SCOTUS did not say that a newly constituted Commission (perhaps with one commissioner whose comments gave some Justices pause recusing; the other Commissioner is already no longer seated) could not revisit the questions whether or not the baker’s conduct violated CADA and, if so, what consequences should follow.  Justice Gorsuch’s concurring opinion, joined by Justice Alito, may have given the impression that they believed that was what must follow; they opined:  “Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.”  But a majority of the Court did not say even that.  And while Justice Thomas, joined by Justice Gorsuch, would have held that the baker’s free expression rights prevent Colorado from enforcing CADA against him even in the absence of anti-religious hostility, again, the Court did not reach that broader constitutional question.  Absent some procedural obstacle in Colorado law, if the Colorado state court and then the Commission have the courage of their convictions, it seems to me that they may address those broader questions – fairly and without hostility to religion – even after complying with the U.S. Supreme Court’s decision in Masterpiece Cakeshop.

Equal Is Equal* (*some exceptions may apply): Marriage Equality in Texas and Pidgeon v. Turner

“Found alternative sides to the things that were said”

Acting in Pidgeon v. Turner (HT @JoeDunman for the opinion copy), the Supreme Court of Texas (SCOTX) has gratuitously protracted the efforts of the city of Houston to treat its lesbian, gay, and bisexual employees constitutionally and hence equally. The court unanimously reversed a lower appeals court’s order allowing Houston to pay equal benefits to married employees whether they are in same-sex couples or different-sex couples. SCOTX then sent the case back down to the trial court for pointless proceedings that can only have one possible outcome under current U.S. Supreme Court precedent – affirmation of Houston’s practice and rejection of the claim that it was unlawful.

The background of the Pidgeon case goes back to the Supreme Court of the United States (SCOTUS) and its first marriage equality holding. On June 26, 2013, SCOTUS decided Windsor v. United States. Windsor held that the heart of the so-called Defense of Marriage Act (DOMA), which denied federal recognition of lawfully state-licensed marriages of same-sex couples, violated constitutional equality principles. In response and on the advice of counsel blessed with more brain cells than ideological fervor, the city of Houston sensibly concluded that it was unconstitutional to deny employees spousal benefits if they had married a same-sex spouse lawfully in another state or country. Then-mayor Annise Parker (later replaced by Sylvester Turner) accordingly directed the city to provide such benefits. A month later, Houston taxpayers and voters Jack Pidgeon and Larry Hicks sued the mayor and city (collectively, “the city”) to enjoin provision of such benefits, contending that it violated various Houston and Texas laws limiting marriage to different-sex couples. Pidgeon and Hicks won in the trial court, but the city appealed.

While the appeal was pending, on June 26, 2015, SCOTUS issued its second marriage equality decision in Obergefell v. Hodges. Obergefell combined cases from four different states and four lower federal courts, but the decision swept even more broadly. Although the Court ruled that “the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite- sex couples[,]” it also made clear that “same-sex couples may exercise the fundamental right to marry.” Full stop. All same-sex couples, not just those in a few states. Indeed, the Court noted that part of why it took up these cases was that disagreements among lower courts had “caused impermissible geographic variation in the meaning of federal law.” The Court held as well that “there is no lawful basis for a State” – any state – “to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” And the Court underscored that “The Constitution … does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” 

Under this reasoning, if same-sex couples were allowed to marry but not given the same benefits, they would not be treated equally, and this then would appear not to be marriage “on the same terms” as different-sex couples. Hence the Texas appeals court in Pidgeon’s case reversed the trial court’s injunction against the city.

Convinced of the righteousness of their cause, Pidgeon and Hicks tried to appeal to SCOTX. Like SCOTUS, most of SCOTX’s jurisdiction is discretionary. And the Texas Justices originally denied review in the case on September 2, 2016 – a fact Justice Boyd omits from his recitation of the procedural history of the case in his opinion for the court in Pidgeon. Then, following a mail campaign and pressure from top Texas Republican officials including the Governor, Lt. Governor, and Attorney general (see this Texas Tribune account), the court reversed course and granted review on the day of Donald Trump’s inauguration. (Today SCOTX revealed in its opinion that it treated all such “emails, letters, and postcards” as friend of the court briefs. I’m reasonably confident this is highly unusual as a general matter, but maybe a Texas procedure maven can shed light on whether it’s common practice for SCOTX.)  It bears noting here that all of the Justices on SCOTX face retention elections periodically, with three of them up in 2018, which seems likely to make them more susceptible to public pressure as they try to interpret law.

In its ruling, SCOTX’s primary procedural defense of taking up the case is its claim that the lower court erred in telling the trial court to revisit the case consistently with Obergefell and a Fifth Circuit U.S. Court of Appeals case, DeLeon v. Abbott. De Leon held Texas’s laws excluding same-sex couples from marriage unconstitutional, and SCOTX is right that its reasoning was not generally binding on Texas state courts. But if that was plain error, it was harmless error, as Obergefell made clear as a matter of supreme, federal, constitutional law that De Leon was right.

On the merits, SCOTX remanded because the Justices “agree with Pidgeon that the [U.S.] Supreme Court did not address and resolve that specific issue [of whether government employee spousal benefits must be provided equally] in Obergefell. ‘Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . . .’ Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017). The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.” (Obergefell made plain that they are unconstitutional.)  And, disingenuously or shockingly inept, SCOTX cited SCOTUS’s ruling four days earlier in Pavan v. Smith to support its claim that Obergefell does not clearly require equality in government treatment of married couples:  “Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others. See Pavan, ___ U.S. at ___, 2017 WL 2722472, at *2.” said Pidgeon.

Pavan addressed a constitutional challenge to Arkansas’s refusal to list both spouses of two married female couples on the birth certificates of their children. Because Arkansas law provides that a husband is generally to be listed on the birth certificate when his wife gives birth, the couples had correctly argued that Obergefell’s equality mandate required that a wife be similarly listed when her wife gives birth. The Arkansas Supreme Court (ASC) disagreed, and the couples sought review from SCOTUS. 

Rather than grant review and receive full briefing and hold argument about whether or not this view of Obergefell is correct, however, SCOTUS summarily reversed ASC. As noted in a dissent in Pavan by new SCOTUS Justice Neil Gorsuch, installed by Donald Trump after Senate Republicans acted to deprive President Obama of his constitutional authority to fill Justice Scalia’s seat, “[s]ummary reversal is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’” The majority in Pavan apparently thought that was the case. Obergefell, they noted in the first sentence of the opinion summarily reversing ASC, explained that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Because Arkansas’s refusal to list both married mothers on birth certificates “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage,’ [quoting Obergefell], we reverse the state court’s judgment.” “Obergefell proscribes such disparate treatment[,]” SCOTUS explained. Thus, SCOTUS understands, as would reasonable people not hell bent on undermining marriage equality, that Obergefell’s interpretation of the Constitution means that government cannot treat married same-sex couples differently from married different-sex couples.

In trying to limit the reach of Obergefell and portray that case as leaving open for debate matters it clearly does not, ASC’s Pidgeon decision sinks even further. It contends that “[o]n the same day the Supreme Court issued its per curiam opinion in Pavan, it also granted certiorari in another case involving a same-sex-marriage issue Obergefell did not address. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, — U.S.L.W. — (U.S. June 26, 2017) (No. 16-111). The Court’s decision to hear and consider Masterpiece Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.” This is risible. (Accord, Joshua Block in this tweet.)

Masterpiece Cakeshop is about the constitutional rights (religious and/or expressive) of people who want to resist a state anti-discrimination law that would bar a maker-seller of wedding cakes from discriminating against those who want them for a wedding of a same-sex couple. It is not about what equality of treatment the Constitution requires of government to extend to different-sex and same-sex couples who marry. Masterpiece Cakeshop truly is, at best, tangential to Obergefell and its vindication of same-sex couples’ constitutional right to marry and right to equal protection. Pavan and Pidgeon, however, are clearly about the equal treatment of married couples, same-sex or different-sex. And the teaching of Obergefell and Pavan are pellucid: equal is equal.

That is what the Texas trial court should now say on this pointless remand in Pidgeon, and if it does not, it is what the state appeals court and if necessary SCOTX should say. SCOTX claimed that “Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case.” He is “entitled to a full and fair opportunity to litigate [his] position[] on remand,” SCOTX said. But there was no need to disrupt the proceedings that would have happened on remand by granting review of the Texas Court of Appeals decision. And since SCOTX in Pidgeon vacated the trial court’s temporary injunction against Houston’s providing equal benefits, this is ultimately just political theater. Harmful political theater, though, designed to give aid and comfort to those who would continue to resist the Supreme Court’s constitutional equality decision in Obergefell and perhaps even to provide an occasion for SCOTUS to revisit marriage equality if more judges of Neil Gorsuch’s ilk find their way onto the U.S. Supreme Court.

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.