Feldman writes:
“In a remarkable 10-to-3 decision, a federal appeals court on Thursday affirmed the freeze on the second iteration of President Donald Trump’s executive order on immigration from six majority Muslim countries. The court said that national security “is not the true reason” for the order, despite Trump’s insistence to the contrary. It’s extraordinary for a federal court to tell the president directly that he’s lying; I certainly can’t think of any other examples in my lifetime.
The decision and the breakdown of the judges voting against the ban — which includes Republican appointees — presages defeat for the executive order in the U.S. Supreme Court, should the Trump administration decide to seek review there. Faced with this degree of repudiation from the federal judiciary, Trump would be well advised not to go to the Supreme Court at all.
The decision for the 4th Circuit Court of Appeals was written by Chief Judge Roger Gregory, who has the distinction of having been appointed to the court first by Bill Clinton, in a recess appointment that would have expired, and then by George W. Bush — a reminder of bipartisanship in the judicial nomination process that seems almost inconceivable today.
Gregory’s opinion had three basic parts, of which the middle one was the most important.
First, Gregory found that the plaintiffs in the case had standing to challenge the executive order as a violation of the First Amendment’s establishment clause. He pointed out that under the “endorsement test” first offered by Justice Sandra Day O’Connor, the establishment clause is violated when the government sends a message to some people that they are insiders, favored members of the political community, or a message to others that they are outsiders, disfavored as citizens.
In O’Connor’s analysis, feelings count. As the 4th Circuit put it in the passage quoted by Gregory, “feelings of marginalization and exclusion are cognizable forms of injury” under the endorsement test. Thus, Muslim plaintiffs who alleged that they experienced a sense of exclusion and harm have the constitutional right to bring a lawsuit. 1
Although the 4th Circuit dissenters objected plausibly that this reliance on emotional experience would allow anyone “who develops negative feelings” to bring an establishment clause case, their objection isn’t really to Gregory’s reasoning, but to the endorsement test itself. And that’s part of constitutional doctrine.
That led Gregory to the heart of his opinion — and the condemnation of Trump as a liar. The strongest legal argument available to the Trump administration was based on a 1972 Supreme Court case called Kleindienst v. Mandel.
In the Mandel case, immigration authorities denied a visa to a Belgian Marxist who had been invited to give lectures in the U.S. The professors who invited him argued that his exclusion violated the freedom of speech.
The Supreme Court denied the claim, stating that when the executive branch excludes a noncitizen from the country “on the basis of a facially legitimate and bona fide reason,” the courts would not “look behind the exercise of that discretion.” That holding looked pretty good for the Trump executive order, which on its face asserts a national security interest in denying visas to people from the six majority Muslim countries.
Here’s where the opinion got personal. Gregory acknowledged that the executive order was “facially legitimate.” But, he said, “bona fide” literally means “in good faith.”
And here, he reasoned, the plaintiffs had provided “ample evidence that national security is not the true reason” for the order. That evidence, the court said, came mostly from Trump himself, in the form of his “numerous campaign statements expressing animus towards the Islamic faith.”
This was really the punchline of the opinion: Trump’s own statements show that he lied when he said the purpose of the executive order was national security. Once that conclusion was on the table, Gregory easily went on to show that such animus violated the establishment clause by sending a message to Muslims that they are outsiders in the political community.
One other George W. Bush nominee, Judge Allyson Duncan, joined the opinion. The three dissents came from Judge Paul Niemeyer, appointed by George H.W. Bush, and two court’s two other George W. Bush nominees. Thus, the breakdown was mostly partisan.
As a result, it’s plausible that Trump might get a few votes for the executive order at the Supreme Court. But he isn’t going to win. Justice Anthony Kennedy will be moved by the argument that the executive order was adopted in bad faith. And even conservative Justice Samuel Alito is likely to be unsympathetic, given his strong record as a defender of religious liberty.
Trump’s lawyers should be telling him right now that it would be a mistake for him to seek Supreme Court review. Not only is he likely to lose, he is likely to lose in a way that undermines his legitimacy and credibility. But it’s doubtful whether he will listen. If Trump had been listening to his lawyers, he wouldn’t be in the situation he’s in now, where the judiciary is telling him to his face that he has bad faith.”
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I’m not even sure the Supremes will take this case.
First, it’s in an odd procedural posture of a preliminary injunction. No trial has ever been held.
Second, the “urgency” — which was fake anyway — clearly doesn’t exist.
Third, there is no Circuit split that needs to be resolved.
On the other hand, it is an interesting constitutional/separation of powers issue, and the Court is now back to “full strength.”
Trump and Sessions would be well advised at this point to heed the advice of the “Supreme Court pros” in the Solicitor General’s Office. But, based on performance to date, that’s unlikely to happen.
PWS
05-25-17
Although I generally agree with the “no Circuit split” rationale, I disagree that the S.Ct won’t review this case. After all AG Sessions (and Trump)”asked for it”.
And Trump’s oft repeated anti-Muslim animus, coupled with Giuliani’s admission that Trump ordered a “muslim ban” is almost sui generis perfect for illustrating that the Court is just following the line of cases in of mid-level “heightened scrutiny” of “means and ends”. Romer v. Evans, 517 U.S. 620, 634-35 (1996) finding “animus” against a politically unpopular group ( sexual orientation); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985) (mentally impaired); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (interracial marriages).
You certainly might be right on that, Gus! I’m not going to be surprised if they take the case.
I’m just thinking that it’s a potential “political hot potato” that the Court would be perfectly justified in leaving alone under it’s traditional policies.
Best,
Paul
Since my judicial career was derailed at 54 years old, I continued to make a living at EOIR as a lawyer, but once I was able to retire and make ends meet, I was able to spend as much time at the beach as possible and instead “work” at my true vocation: amateur historian. Pays about the same after taxes and I don’thave to go to the office or take orders from anyone.
That’s why as an amateur historian, I see lots of similarities to the circumstances that led the Supreme Court to reject past precedents and prescribe a constitutional right to appointed counsel in Gideon v. Wainwright, 372 U.S. 335 (1963), according to the classic Anthony Lewis “Gideon’s Trumpet”.
Including the role of state Attorney Generals, here on opposing the travel ban using essentially 10th Amendment concerns, to a potentially sympathetic Libertarian Gorsuch.
In Gideon, the role of then Minnesota Attorney General Walter Mondale was decisive. Florida AG Wainwright had issued a pro-forma invitation to all state AGs to join as amicus opposing appointed counsel. But Mondale surprised by instead organizing the pro-Gideon state AGs in an amicus brief explaining how appointed counsel was in the states’ best interests because it protected the state’s primary goal, efficient due process.
That’s why I initially compared the role of the state AGs to the American GIs at St. Vith during the Battle of the Bulge. No one thought a few GIs armed with nothing but bazookas could stop Hitler’s Panzers. But those heroes did delay the Panzer onslaught until the skies cleared for the Allied air force and Patton was able to reach Bastogne.
Whether a narrower Trumpian travel ban ever comes into effect, the state AGs have created the circumstances to judicially redefine “plenary” power over immigration beyond merely tribal concerns. We will soon get an inkling on the Supremes when they decide the equal protection case on deriving citizenship by children of US citizen fathers vs mothers in Sessions v. Morales-Santana.
“Sessions v. Morales-Santana challenges a ruling denying citizenship to the foreign-born son of an American citizen. Current immigration law discriminates between citizen fathers and citizen mothers when they have children abroad. Mothers who have lived in the U.S. for a year can pass citizenship to their children; fathers must have lived in the U.S. for ten, including five years before the father is fourteen.
This raw sex discrimination is a legacy of the period in which Congress and the courts regarded federal power to confer or withhold citizenship as almost unreviewable. (This case was argued in the November session; Justice Ruth Bader Ginsburg is the sole justice who has not written an opinion from that sitting—possibly a bad sign for the government, which is defending the law.) ” Cf https://www.theatlantic.com/politics/archive/2017/05/the-supreme-courts-immigration-law-showdown/527868/
Will the Supremes merely reaffirm Fiallo v. Bell 430 U.S. 787 (1977) in Sessions v, Morales Santana? That seems to be Nolan’s underlying assumption. But I think the Supremes will actually choose to sing like Carlos Santana “You’ve got to change your evil ways”.
Thanks, Gus, for sharing your thoughts and analysis.
Hope you are having a good Memorial Day weekend!
Best,
Paul
Oh! It’s 80 degrees and sunny with low humidity and the ocean temperature is over 70 degrees here in Virginia Beach. Cool for a Miami boy, but also plenty warm for an Iowan who regularly swam in Iowa’s minuscular beaches. I got up early enough to see the sunrise and soon will watch the sunset from our pool.
I’ve also swam at several Madison and Black River State forest Wisconsin lakes and rivers, and in 2015 swam at the Minneapolis Nokomis beach. Imagine that, a public beach that prohibited Commies, albeit mispelled! My Cuban refugee heart skipped a beat!
Sounds good, Gus!
We’re just back from 10 days with Anna & family in Beloit, WI. Part of the visit involved my “guest teaching” at a Beloit College undergrad Anthro class on migration issues. It was a great experience that I plan to write further about when I get a chance. But, for now, I’m about to start teaching an intensive one-month Summer Semester class on Immigration Law & Policy at Georgetown Law!
It’s a great time to be retired from the USG! I predict that more of our “contemporaries” will be joining us shortly.
Best,
PWS
Garrett Epps incorrectly described the law in his article for the Atlantic. He says,
“Current immigration law discriminates between citizen fathers and citizen mothers when they have children abroad. Mothers who have lived in the U.S. for a year can pass citizenship to their children; fathers must have lived in the U.S. for ten, including five years before the father is fourteen.”
The requirement of “current immigration law” for US citizen fathers of children born abroad, out of wedlock, is for five years of physical presence in the US or its outlying possessions, with at least two years AFTER reaching age fourteen– the same requirement when the child is born abroad, in wedlock, to an alien parent and a US citizen parent, whether that parent is the father or mother. It’s not necessary for the father to have lived in the US for a day before age fourteen (or at all, for that matter– but that’s another story).
What Mr. Epps calls “raw sex discrimination” applies ONLY for persons born out of wedlock– not a trivial distinction, but one which Mr. Epps neglects to mention at all.
Mr. Morales-Santana’s father HAD lived in Puerto Rico (included in the meaning of “United States” for purposes of the statute) for at least ten years, including five years before age fourteen. Under the statute as Mr. Epps described it, Morales-Santana would’ve been born a citizen anyway. The actual requirement then in effect was for a total accumulation of ten years of physical presence in the US or its outlying possessions, with at least five years after attaining the age of fourteen years. Morales-Santana’s father had left Puerto Rico for the Dominican Republic about three weeks before his nineteenth birthday, and apparently hadn’t returned (or hadn’t returned for a sufficient accumulated length of time) before his son was born in the Dominican Republic in 1962.
My personal opinion is that this case is tied, and a re-hearing of arguments will be scheduled so Gorsuch can break the tie. It is truly The Case From Hell, which there just ain’t no fixin’. However it turns out, it’s going to be a lot easier to write the dissents than an opinion for the court.
Thanks for the detailed comment, Dave.
And thanks for reading immigrationcourtside.com!
Best,
PWS
Dave: Excellent. Thanks! Personally I would prefer Gorsuch to participate, but my being generally Libertarian prejudices me because Gorsuch is Libertarian.
I do think that if Gorsuch then the vote would be more like 6-3, or even another Justice Thomas strict construction/Rule of Lenity unanimous opinion like in Esquivel-Quintana v. Sessions (2017) to avoid a bitter split and rein in Sessions and Trump. There are going to be a lot of cases with the Defendant named Sessions in future lawbooks.
I just think that because 80 year old J. Kennedy wants one more landmark and newby Gorsuch leans that way, we may have not just a “malicious intent” despite facially valid precedent. Like the Court did in the Muhammad Ali case, even reluctant members may join rather than have to write a dissent asserting that Trump’s oft repeated “1st thing I do is Muslim travel ban” coupled with Giuliani’s admission must be ignored for deference.
Bad facts may make bad law, ordinarily. Conversely, clear facts, allow for forthright decisions. Sometimes you even get a case named Loving v. Virginia to illustrate that love trumps prejudice. And US v. Nixon as well as Gore v. Bush are self-referencing.
Nothing is better documented than Trump’s repeated rants against Muslim refugees. This 4th Circuit case is named International Refugee Assistance Project v. Trump. Law students love case names that making it easier to remember their rulings.
Amen!
Best,
PWS