Travel Ban

Five Unanswered Questions From Trump v. Hawaii

By Josh Blackman
Tuesday, July 3, 2018, 8:02 AM

The outcome in Trump v. Hawaii should not have been much of a surprise. In December, a majority of the Supreme Court allowed the entirety of the travel ban to go into effect temporarily. Over the past decade, when the Roberts Court has stayed a lower court’s ruling, it has almost always reversed its judgment. This case was no exception. Furthermore, the court resolved the legality of the presidential proclamation in its entirety. The justices did not settle on some sort of Solomonic split: for example, holding that the government could deny entry to aliens with non-immigrant visas but must admit aliens with immigrant visas. President Trump prevailed on all claims.

The court’s reasoning also should not come as a surprise, at least not for Lawfare readers who have followed my writing on the site. The majority opinion largely tracked the arguments I have made here over the past 18 months on at least nine discrete issues:

  • First, standing was premised on a “concrete injury” based on family reunification, not a “spiritual and dignitary injury.”
  • Second, there was no conflict between Section 1182(f) of the Immigration and Nationality Act, which allows the president to suspend entry to certain aliens, and Section 1152(a)(1)(a), which concerns the issuance of visas. These provisions “operate in different spheres.”
  • Third, the former provision does not impose temporal or other limitations on the president’s authority; rather, it “exudes deference to the President in every clause.”
  • Fourth, the travel ban does not run afoul of the non-delegation doctrine.
  • Fifth, the court declined to apply “Establishment Clause precedents concerning laws and policies applied domestically.” Instead, the relevant test from Kleindienst v. Mandel and Kerry v. Din was “whether the policy is facially legitimate and bona fide.” Under this standard, there was no need to look “extend beyond the facial neutrality of the order.”
  • Sixth, even assuming that the court can “look behind the face of the Proclamation to the extent of applying rational basis review,” the travel ban is “related to the Government’s stated objective to protect the country and improve vetting processes.”
  • Seventh, because the travel ban “has a legitimate grounding in national security concerns, quite apart from any religious hostility,” notwithstanding the president’s tweets and other statements, the court “must accept that independent justification.”
  • Eighth, in contrast to the Sotomayor dissent, the court afforded President Trump the “presumption of regularity.”
  • Finally, the court concluded that the comparison between the travel ban and Korematsu is inapposite.

The majority opinion, however, leaves open at least five unanswered questions that the judiciary is likely to have to address in the near future.

First, what happens on remand with respect to discovery?

The government appealed Trump v. Hawaii to the Supreme Court after preliminary injunctions were issued by district courts in Hawaii and Maryland. The Hawaii decision concluded only that the plaintiffs were unlikely to succeed on the merits at this preliminary phase. It was not, and could not have been, a final judgment on the merits. The penultimate sentence of the chief justice’s opinion explains that “[t]he judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.”

On remand, therefore, the plaintiffs are within their rights to seek a summary judgment, and even a trial, about whether the proclamation is unlawful. It is unlikely that additional proceedings would alter the court’s statutory analysis, which involved pure questions of law. However, further proceedings could shed light on the “animus” question with respect to the Establishment Clause. Noah Feldman, relaying comments from his colleague Owen Fiss, points out that “the standard of proof of bias that the plaintiffs would have to meet could actually be lower at trial than in their action seeking a preliminary injunction.” They are correct. Even if no further evidence is added to the record, it is entirely foreseeable that the district courts could rule against President Trump once again. But the record is not sealed. Feldman adds that “the plaintiffs could seek discovery to uncover new evidence of Trump’s thinking, including, potentially, drafts of the executive order or memos about it.”

Without question, the plaintiffs will seek discovery. They always do. And the district courts very well may oblige such requests. Following the lead of Justice Stephen Breyer’s dissent, the district courts could probe whether, in fact, exemptions are being granted under the terms of the proclamation. (If the government wants to avoid another trip to the Supreme Court, it should implement the waiver policies in a liberal fashion.) Justice Anthony Kennedy’s concurring opinion, however, erects important guardrails for allowing discovery beyond official records, such as waiver requests. First, Justice Kennedy questions “[w]hether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs and in light of today’s decision, is a matter to be addressed in the first instance on remand.” It is not a given that any further proceedings would be “proper,” given the court’s definitive ruling, albeit on a threshold question about the preliminary injunction. Specifically, Justice Kennedy writes that this may be a case wherein the president has “discretion free from judicial scrutiny.” Second, Justice Kennedy explains that “even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.” Again, he reiterates the deference due to the executive with respect to discovery matters.

Indeed, this admonition sheds light on the Supreme Court’s unsigned order from December  in In Re United States. In this case, Judge William Alsup of the Northern District of California ordered the government to produce internal documents about its decision to terminate the Deferred Action for Childhood Arrivals (DACA) policy. (To borrow from Feldman’s formulation, the plaintiffs sought “discovery to uncover new evidence of Trump’s thinking.”) The Supreme Court, however, issued a writ of mandamus, blocking the discovery request by a vote of 5 to 4. In dissent, Justice Breyer contended that “the Government’s arguments do not come close to carrying the heavy burden that the Government bears in seeking such extraordinary relief.” Based on Justice Kennedy’s concurring opinion in Trump v. Hawaii, the soon-to-be retired jurist likely agreed that the “heavy burden” was satisfied because of the risk of intruding onto the executive’s powers. Additionally, DACA—unlike the travel ban—does not implicate “the foreign affairs power of the Executive.” Yet, a majority of the court still intervened at an early juncture to halt intrusive discovery.

Shortly after Hawaii was decided, I tweeted that following remand, the Department of Justice should create a macro for Justice Kennedy’s opinion, because the department will have to cite it often:

 

In light of Kennedy’s concurrence and the order in the DACA case, I do not share Feldman and Fiss’s optimism as to the prospects of discovery for the plaintiffs here, beyond the production of official documents concerning the waiver process. The court—with or without Kennedy—will not lightly entertain intrusive discovery orders. And if no meaningful evidence is added to the record, it is difficult to see how the district courts could find the proclamation unlawful on remand.

Second, going forward, how should the lower courts treat “this President,” as opposed to “the President”?

On the eve of oral arguments, reporter Robert Barnes aptly summarized Trump v. Hawaii in a pithy headline for the Washington Post: “In travel ban case, Supreme Court considers ‘the president’ vs. ‘this president.’” The court chose the former. “[W]e must consider not only the statements of a particular President,” Chief Justice Roberts explained, “but also the authority of the Presidency itself.” Specifically, the court concluded that “[t]he entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.”

Justice Kennedy made this point explicitly in his concurring opinion. He referenced “the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs,” adding that “an official”—in this case, the president—“may have broad discretion, discretion free from judicial scrutiny.” Not all officials receive such deference. During oral arguments, Justice Kennedy asked the solicitor general about the relevance of “hateful statements” made by a “local mayor” “as a candidate.” As his concurring opinion illustrates, a “local mayor” is very different from the president of the United States. Likewise, the president of the United States is in a very different position from that of a mere commissioner of the Colorado Civil Rights Commission, who disparaged the beliefs of Jack Phillips, the owner of the Masterpiece Cake Shop. Both the majority and concurring opinions in Hawaii reflect a principle I refer to as the Presidential avoidance canon”: because of his unique role in the separation of powers, the law applies differently to the president than it does to anyone else. As I noted in a recent post on obstruction of justice, without question, the president is not “above the law.” The far more important question is: What “law” applies to the president?

In stark contrast, Justice Sonia Sotomayor’s dissent focused primarily, if not exclusively, on “this president.” Will Baude pointed out that “Justice Sotomayor’s dissent contains repeated references to ‘President Trump,’” and “mentions the ‘Trump administration.’” He added, “I doubt that either is an accident.” Indeed, as Justice Sotomayor delivered her opinion from the bench, she expressly referred to “President Donald Trump.” I was surprised that she used the president’s first name.

At a minimum, Trump v. Hawaii—coupled with the imminent arrival of a new justice—should further lower the temperature of the judiciary toward President Trump. A ruling against the president, however, would have sent the opposite signal to an emboldened lower-court judiciary. Still, the lower courts will no doubt take notice of the fact that the Supreme Court considered extrinsic evidence, including pre-inauguration campaign-trail statements. Although that evidence did not tip the balance in this case, under the deferential standard of review the court applied, such evidence may yield a different result in cases involving domestic affairs—such as the DACA litigation—with more stringent scrutiny.

One additional note on this point: The special counsel’s attorneys should carefully review the court’s opinion with respect to how the president’s statements ought to be considered in the broader context of foreign relations. (Yes, that includes L’Affaire Russe.) Specifically, they should consider how thoroughly the courts can probe the president’s intent when a facially neutral reason is afforded to explain his actions. The presidential avoidance canon counsels against robust applications of the obstruction statute when the president is engaging in what Justice Kennedy referred to as “spheres” wherein the executive “may have broad discretion, discretion free from judicial scrutiny.”

Third, how does the Constitution apply to aliens who are not seeking entry into the United States but have already crossed the border?

Does Trump v. Hawaii inform other immigration-related litigation, such as cases concerning the rescission of DACA, the rights of asylum seekers and family-separation policies? The short answer is no, not directly. The level of scrutiny in Trump v. Hawaii was extremely deferential, but it was employed in a limited context. Chief Justice Roberts explained that the “exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” The key word in that sentence is “exclusion.” The pivotal question, then, is how does Hawaii extend to other pending cases that do not involve “exclusion”? It is helpful to distinguish between four categories of cases: (1) aliens seeking entry into the United States; (2) aliens outside the United States not seeking entry; (3) aliens who recently crossed the border into the United States; and (4) aliens within the border. The Constitution applies to each category differently.

Trump v. Hawaii provides the rule only for the first category. The chief justice’s opinion describes entry as “the privilege of admission,” not a right. This statement of law comes from Landon v. Plasencia (1982), which Roberts did not cite: “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” This is not to say aliens seeking entry to the United State reside in a constitutional desert. Chief Justice Roberts acknowledged that an American “person’s interest in being united with his relatives [outside the United States] is sufficiently concrete and particularized to form the basis of an Article III injury in fact.” However, this interest in family unity is not governed by the domestic substantive due process standard under the Fifth Amendment. For example, several amici cited Moore v. City of East Cleveland for the proposition that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition.” Yet, Moore was not even mentioned by the majority or dissenting opinions. Aliens seeking admission are not due the same process as those already in the United States. (Contrast the facts in Hawaii with Boumediene v. Bush, which found that “noncitizens detained by our Government in territory over which another country maintains de jure sovereignty [have] rights under our Constitution.”) Likewise, the court found that “Establishment Clause precedents concerning laws and policies applied domestically” are simply inapplicable to the context of a foreign exclusion order. Furthermore, under the rule in Mandel, the court’s domestic precedents concerning the freedom of speech—in which strict scrutiny is applied—are also inapplicable. Yet the court deliberately cabined its analysis “matters of entry and national security.”

Hawaii does not provide the rule for the second category: what rights are due to aliens outside the United States who are not seeking entry. In 2017, the Supreme Court left this question open in Hernandez v. Mesa. In that case, a border patrol agent fired two bullets across the border, killing a Mexican national. After deciding Ziglar v. Abassi, the court remanded Hernandez back to the Fifth Circuit to consider whether damages are available under the Bivens doctrine. On remand, the en banc Fifth Circuit rejected the argument that the Fourth and Fifth Amendments protected “foreign citizens on foreign soil” Hernandez v. Mesa, 885 F.3d 811, 817 (5th Cir. 2018). Hernandez has been appealed to the Supreme Court a second time. Justice Kennedy’s replacement will be able to decide whether certiorari should be granted.

The third category concerns aliens who recently crossed the border into the United States. As a threshold matter, aliens who make it across the border are in a very different position than those outside seeking entry. Without question, aliens inside the United States are protected by the Constitution but do not receive the full panoply of rights and processes that are due to citizens. However, aliens who recently (an ill-defined term) entered the United States may be treated as if they had never entered in the first place. For example, the Third Circuit recently recognized in Castro v. DHS that aliens who are “apprehended within hours of surreptitiously entering the United States . . . cannot invoke the Constitution, including the Suspension Clause,” because they were treated as if they were “‘alien[s] seeking initial admission to the United States.’”Such recent entries may be afforded certain statutory protections—such as asylum laws—but, under this rule, cannot avail themselves of substantive and procedural constitutional protections. Trump v. Hawaii does not shed much light on this specific issue, which the Supreme Court has yet to address. However, as the court recognized in Landon, “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” Or, as the court explained in United States v. Verdugo-Urquidez (1990), “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”

The fourth category considers the constitutional rights of aliens who are within the United States. In Zadvydas v. Davis, the Supreme Court recognized that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Yet that holding merely raises the question of what process is due. Specifically, do noncitizens receive the full panoply of constitutional rights? The simple answer is that they do not. Zadvydas acknowledged “that the Due Process Clause protects an alien subject to a final order of deportation . . . though the nature of that protection may vary depending upon status and circumstance.” In Osorio-Martinez v. Attorney General, for example, the Third Circuit found that aliens with the requisite connection with the United States “enjoy at least ‘minimum due process rights.’” The panel, however, did not explain precisely what those “minimum” rights are. There is also an open question of whether the federal government could expand “expedited removal” procedures into the interior of the United States—currently, regulations limit such removals to areas within 100 miles of the border. Beyond procedural rights, aliens lack certain substantive rights. For example, even lawful permanent residents are denied basic First and Second Amendment rights: They cannot contribute to political campaigns and are subject to a categorical ban on firearm ownership. Other issues are being actively litigated. Some courts have found that a liberty interest in family unity based on the Due Process Clause prevents the separation of parents from their children. And the Supreme Court did not resolve the scope of abortion rights that are due unaccompanied minors who are held in federal custody, a matter with which the D.C. Circuit has struggled recently. Trump v. Hawaii, far from a comprehensive explication of presidential power at the border, leaves these issues unresolved.

Fourth, what is the scope of the president’s Article II powers?

Because the court found that the “Proclamation is squarely within the scope of Presidential authority,” it did not need to address the scope of the president’s Article II powers. (Had the court found that Congress did not delegate this authority to the president, or that we were in Youngstown’s “zone of twilight,” it would have had to answer this question.) Justice Clarence Thomas’s concurring opinion, however, addressed this question directly. He cited United States ex rel. Knauff v. Shaughnessy (1950) for the proposition that “the President has inherent authority to exclude aliens from the country.”

The scope of the president’s Article II powers may return to the court in the DACA litigation. Recall that Attorney General Jeff Sessions initially justified the recision of the deferred action policy because he determined it was unlawful. In several various writings, I have urged the Justice Department to state this position more forcefully. Homeland Security Secretary Kirstjen Nielsen explained in a recent memorandum, however, that DACA was terminated without regard to any Article II argument. As a result, the Supreme Court likely will not have to address the scope of the president’s inherent powers unless the justices find that Nielsen’s other justifications are inadequate.

Finally, what is the permissible scope of a nationwide injunction?

Because the Supreme Court found that the proclamation was lawful in its entirety, it did not have occasion to address the validity of nationwide injunctions. Justice Thomas thoroughly addressed that issue in his solo concurring opinion: “I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.”

The lower courts have already taken notice. Earlier this year, a district court found that the attorney general could not deny Chicago certain federal funding because of the city’s “sanctuary” policies. Rather than limiting its relief to Chicago, the court entered a nationwide injunction. A panel of the Seventh Circuit unanimously affirmed the ruling but split 2-1 on the validity of the nationwide injunction. The attorney general asked the en banc Seventh Circuit to limit the relief to the city of Chicago. The en banc court granted review but postponed ruling on whether the nationwide injunction should be stayed until “the Supreme Court’s resolution of Trump v. Hawaii.” The U.S. solicitor general sought an application for a stay from the Supreme Court. Hours after Hawaii was decided, the en banc Seventh Circuit put the nationwide injunction on hold.

Eventually, the Supreme Court will address the scope of nationwide injunctions in the sanctuary city, or perhaps the DACA litigation.