Wednesday, June 7, 2017

Justices Clear "Travel Ban" for Possible Early Arrival at Supreme Court

Court Could Quickly Decide to Hear Case on the Merits

Great Hall Leading to the Courtroom
The next few weeks may lead to a dramatic ending to what has so far been a fairly mundane Supreme Court term. Last Friday, the Court responded in rare fashion to the Administration’s request late Thursday night that it review the May 25th decision of the Fourth Circuit Court of Appeals upholding a nationwide injunction against President Trump’s revised “Travel Ban," formally known as Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13780). 

Rather than follow its normal process, the Court ordered that a response to the petition for certiorari (the formal name for seeking review) be filed on or before June 12th, which is quite an accelerated schedule and departure from practice; indeed, a response to a petition is only required in cases involving death sentences unless, as here, one is ordered by the Court. In addition, the Court ordered that respondents file that same day a response to the Administration's request for a stay of the Fourth Circuit’s decision pending the disposition of the certiorari petition. 

The normal process for deciding whether to review cases under certiorari jurisdiction is much longer, especially for cases seeking review late in the Court's term. The expectation was that the Court – which has broad discretion over which cases to accept for review – would not decide until its next term starting in October whether to accept the case; if it did, then the case would be briefed, argued, and decided by June 2018. It is also interesting to note that this case is at the preliminary injunction stage, which is atypical for Supreme Court review.

When I first wrote about this topic in late February ("Judicial Review of Executive Action: Trump Card for Travel Ban"), we were dealing with the first version of the Executive Order. Even though a revised Executive Order was issued that replaced the original one, passionate arguments continue to be made over whether it unconstitutionally prefers one religion over another. The question essentially comes down to this: Can a facially valid Executive Order be rendered unconstitutional by pointing to statements not found in the Order itself? The Fourth Circuit, which heard the appeal en banc (meaning all of the court's active judges participated), said yes in affirming the district court's injunction. The majority opinion (there were several) concluded that plaintiffs "have more than plausibly alleged that EO [13780]’s stated national security interest was provided in bad faith, as a pretext for its religious purpose." Judge Niemeyer, who dissented, framed the issue this way: "While the [district] court acknowledged the President’s authority . . . and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from 'look[ing] behind' 'facially legitimate and bona fide' exercises of executive discretion in the immigration context to discern other possible purposes . . . ." Obviously, there are strong and diametrically opposed views at play here about the nature of the Order and the scope of judicial review.

Whatever one may think of candidate or President Trump and his statements (relating to EO 13780 or not), the question of whether a federal court can invalidate an Executive Order based on statements made during an election campaign or in other contexts is of great constitutional importance beyond this case. The Court may very well grant the petition and decide the case on the merits to rule definitively on this issue. There may be a concern that courts are applying different standards to President Trump because of the content, nature, and tone of his public communications about issues in general and this one in particular. In this connection, the Court may take a hard look at whether Judge Niemeyer is correct that the Fourth Circuit's majority opinion “adopts a new rule of law" that to some appears to have no boundaries and would allow judges to pick and choose what they will use to interpret Executive Orders. For example, if courts can use statements beyond the text of an Order, should they now take note of the recent summit and meetings held in Saudi Arabia? At the same time, the Court may be persuaded that it is precisely because of these ex-Order communications that the courts must be allowed to construe Executive Orders in the context of related statements.

If the Supreme Court agrees to hear the case on the merits, which will require that at least four of the Justices want to do so, the continued vitality of the Court's 1972 decision in Mandel will be a focus of any ruling. That case involved the denial of a visa to Ernest Mandel, a communist who wished to visit the United States to give speeches and attend conferences. As the Supreme Court stated in its decision, 
plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under 212 (a) (28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. 
There also are parallels here to statutory interpretation, which typically places significant limits on the use of legislator pronouncements and focuses on the plain meaning of the words of a statute.

The President has not fared well in the courts in this area, and it is now up to the Supreme Court to decide if it will address whether judges must examine only the text within the four corners of an Executive Order to determine whether it comports with the Constitution, or allow them to review other statements in order to determine whether there is an unconstitutional animus.

We will know in a few weeks whether the Court will decide to hear the case on the merits. 


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