President Donald Trump’s “travel ban”—the two successive executive orders barring entry of persons from selected Muslim-majority countries—is headed for The Show.
For those scoring at home, the first travel ban won one—in a district court in Massachusetts—and lost three, in district courts in Virginia and Seattle, and then in the Ninth Circuit before being withdrawn. The revised ban so far has gone 0-3. District courts in Maryland and Hawaii both enjoined it, and Thursday the Court of Appeals for the Fourth Circuit affirmed the Maryland court’s injunction.
Because the Fourth Circuit’s decision was “en banc”—meaning decided by a full-court panel of 13 judges rather than the normal three-judge panel—there’s nowhere to go but the Supreme Court, which is virtually certain to grant review. In its current form, it bans entry in the U.S. by nationals of six majority-Muslim countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for at least 90 days until the executive can determine whether those countries can provide enough information to U.S. authorities about individuals to satisfy a new system that Trump called “extreme vetting.”
The straightforward case against the travel ban goes like this: Candidate Trump to promised “a total and complete shutdown of Muslims entering the United States”; as president he said he was keeping that promise; his first order used explicitly religious language; the new one uses neutral language—but Trump has winked at the camera to indicate that it was still the same. By discriminating against Muslims, the orders violated the First Amendment’s ban on “an establishment of religion.” Fourth Circuit Chief Judge Robert Gregory’s majority opinion relies on that argument, as did earlier opinions by District Judges Leonie Brinkema, James Robart, Derrick Watson, and Theodore Chuang, and by a three-judge Ninth Circuit panel.
However, two Fourth Circuit judges—Barbara Keenan and Jim Wynn—wrote separately in an apparent effort to offer the Supreme Court another basis, if it wants one, to reject the ban.
These judges apparently realize that the challenge faces a heavy lift in front of the Supreme Court. In a case like this one, the court’s decision will shape executive power long after they have left the bench. (Justice Robert Jackson, for example, died in 1954; but his separate opinion in the 1952 Steel Seizure case, Youngstown Sheet & Tube v. Sawyer, is still the basic template for judging president’s domestic authority.) Beyond that, in the executive-power context, the words “national security” and “national defense” often exercise an almost hypnotic power over the judicial mind.
The court’s younger justices come to the bench shaped by years of serving the executive branch. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito served both Ronald Reagan and George H.W. Bush (Roberts was both a Department of Justice official and part of the White House Counsel’s office, Thomas was head of the Equal Employment Opportunity Commission, Alito was a Justice official and federal prosecutor); Elena Kagan worked for Bill Clinton’s White House and was Barack Obama’s solicitor general; Neil Gorsuch worked for George W. Bush’s Justice Department.
Executive-branch lawyers instinctively mistrust any doctrine that might, in the future, block the president from using power that is even arguably his. In this regard, they may be worried by the central argument against the travel bans—that Trump’s statements before and after taking office are relevant, and show an unconstitutional intent to discriminate.
The Fourth Circuit’s majority opinion recited Trump’s anti-Muslim rhetoric and concluded that a reviewing court can and should use these as indications of the executive’s motive in promulgating the ban. That motive, it concluded, was “religious intolerance, animus, and discrimination.” Because government policy that disfavors a specific religion violates the Establishment Clause, the ban cannot survive, the majority concluded.
Trump’s statements, both as a candidate and as president, have a “substantial, specific connection” to the discriminatory motive, it argued. (Judge Stephanie Thacker wrote a separate opinion arguing that Trump’s campaign statements should not be considered, but that his post-inauguration statements and actions are enough to show discriminatory intent.) The government argued that use of campaign statements might chill political debate; the majority replied, “To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.”
As Judge Paul Niemeyer outlined in his dissent, there are a lot of reasons—some precedential and some practical—why the high court might not want to make Trump’s statements relevant to the legal issue. At best, it’s an open question. Judges Keenan and Wynn, in separate concurrences, outlined a different set of arguments against the travel ban. Regardless of intention, they said, the order is not authorized by the Immigration and Nationality Act. Statutory arguments might allow the justices to reject the travel ban while not making any broad statements about constitutional authority.
Both opinions center on two provisions of the INA that seem to conflict. One the one hand, § 1152(a)(1)(A) provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” On the other, § 1182(f) states that “[w]henever the President finds that the entry of any aliens or of any class of aliens ... would be detrimental to the interests of the United States, he may ... suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants[.]”
The challengers argued that banning all travelers from six countries violates § 1152. They note that § 1152 was added to the INA 12 years after § 1182. Rules of statutory construction suggest that the newer section limits the old, meaning the president can’t discriminate by nationality—or at most he can only do it in granting of non-immigrant visas. The travel ban bars all entry, and thus goes beyond § 1182, they said.
Keenan’s separate opinion added a third statutory argument straight out of second-year administrative law casebooks. Under § 1182, the president must “find that the entry of ... any class of aliens” would be “detrimental” to the national interest, she noted. Trump’s order, she wrote, includes no “findings” of fact. At oral argument the government said the president was “not sure” whether immigrants from the six countries pose a danger. “[T]he statutory text plainly requires more than vague uncertainty,” she wrote.
Wynn’s statutory argument is more sweeping. “Did Congress, in enacting Section 1182(f), authorize the President to deny entry to a class of aliens on the basis of invidious discrimination?” he wrote. His answer was no.
Under basic administrative law principles, an executive agency (even the president) may use only the authority the statute actually grants. Wynn argued that, without a clear statement by Congress, religious discrimination is not authorized under the INA. An old rule of construction dictates that courts should read statutes, if possible, in ways that don’t raise constitutional doubts. A broad reading of § 1182(f) would do so:
If, as the Government’s argument implies, Congress delegated to the President the authority to deny entry to an alien or group of aliens based on invidious discrimination against a race, nationality, or religion, then Section 1182(f) would encroach on the core constitutional values set forth in the First, Fifth, and Fourteenth Amendments: The President could deny entry to aliens of a particular race solely based on the color of their skin ... solely on the basis of their place of birth ... [or solely on the basis of adherence to] a particular religion ... Or, as this Court concludes the President likely did here, the President could rely on one form of invidious discrimination—discrimination based on national origin—to serve as pretext for implementing another form of invidious discrimination—discrimination based on religion.
According to a Congressional Research Report earlier this year, no president before Trump has ever invoked his § 1182(f) authority to exclude all entry by any one national group. Most § 1182(f) orders exclude not national groups, but subgroups of aliens who have engaged in some activity—e.g., “undocumented aliens by sea” or “Panamanian nationals who formulate or implement the policies Manuel Antonio Noriega and Manuel Solis Palma.” The one possible exception is an order by President Ronald Reagan in 1986, “[s]uspending the entry of Cuban nationals as immigrants”—but even that order only excluded those seeking immigrant visas. It also included “specified exceptions,” such as “immediate relatives” of Americans, and was thus narrower than Trump’s travel ban.
The statutory arguments might offer executive-minded justices a welcome off-ramp from a senseless constitutional confrontation. The administration has still not produced any factual basis justifying the six-country ban. Department of Homeland Security reports deny that immigrants from these countries pose any unusual danger; past national-security officials filed briefs stating that the ban serves no anti-terrorism purpose.
The government has reacted to these factual questions much the way Trump himself reacts to questions about Russia—Fake News! Nothing to see! Shut up! None of your business!
A justice who genuinely cares about presidential authority might be appalled to see this president put the legitimate power of his office at risk in pursuit of this inept, nakedly political executive order. The game might seem not worth the candle; or perhaps there never was a candle at all.