The End of the Beginning of Trump Travel Order Litigation?

SCOTUS gets it right, Judge Watson gets it wrong

By Andrew R. Arthur on October 13, 2017

In a summary disposition issued by the Supreme Court on Tuesday, the Court vacated the decision of the Court of Appeals for the Fourth Circuit in Trump vs. International Refugee Assistance Project (IRAP), and remanded the case to the Four Circuit "with instructions to dismiss as moot the challenge to Executive Order 13,780 [EO-2]." Although the Court stated, "We express no view on the merits," it spoke volumes on the Fourth Circuit's decision, as explained below.

That same day, however, U.S. District Court Judge Derrick Watson demanded a classified report from the acting Homeland Security secretary to the president "detailing country-by-country efforts to step up the vetting of foreigners who apply for visas" in a case involving the latest iteration of the travel order.

On the same day the Supreme Court got it right, Judge Watson got it wrong.

In May I broke down the Fourth Circuit's decision in IRAP, and in particular my issues with the intemperance of the language used by the court therein. Not only was that decision legally flawed, but it betrayed an animus toward the president that called into question the court's objectivity.

The Fourth Circuit's decision had affirmed "in substantial part" the decision of a federal district court judge for the District of Maryland issuing "a nationwide preliminary injunction as to Section 2(c) of" EO-2. A quick review of the history of that provision frames both the Supreme Court's decision, and the current state of the president's travel restrictions.

On January 27, 2017, President Trump issued Executive Order 13769 (EO-1), which was captioned "Protecting the Nation from Foreign Terrorist Entry into the United States". On February 3, 2017, a federal district court judge in the Western District of Washington issued a temporary restraining order (TRO) that prevented the government from enforcing all or part of five subsections of EO-1. On February 9, 2017, the Ninth Circuit in Washington v. Trump denied the government's motion for an emergency stay of that TRO. The Ninth Circuit denied that motion on due process grounds, holding:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual's ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.

Significantly, the court stated that:

[E]ven if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. ... The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.

On March 6, 2017, in apparent response to the Ninth Circuit's offer to rewrite EO-1, the president issued a new executive order (EO-2), which was also captioned "Protecting The Nation From Foreign Terrorist Entry Into The United States". According to the Fourth Circuit, section 2(c) of EO-2:

[R]einstated the ninety-day suspension of entry for nationals from six countries, eliminating Iraq from the list, but retaining Iran, Libya, Somalia, Sudan, Syria, and Yemen (the "Designated Countries"). The President, again invoking 8 U.S.C. § 1182(f) and also citing 8 U.S.C. § 1185(a), declared that the "unrestricted entry" of nationals from these countries "would be detrimental to the interests of the United States."

The Second Executive Order, unlike its predecessor, states [in section 1(d)] that nationals from the Designated Countries warrant "additional scrutiny" because "the conditions in these countries present heightened threats." In justifying the selection of the Designated Countries, [section 1(d) of] EO-2 explains, "Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones." The Second Executive Order states [in section 1(f)] that "until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high."

The Second Executive Order also provides brief descriptions of the conditions in each of the Designated Countries. It notes [in section 1(e)(iv)], for instance, that "Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas [, and] ... elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country." The Second Executive Order further states [in section 1(h)] that "[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States." [Section 1(h)] provides the following examples: two Iraqi refugees who were convicted of terrorism-related offenses in January 2013, and a naturalized citizen who came to this country as a child refugee from Somalia and who was sentenced for terrorism-related offenses in October 2014. The Second Executive Order does not include any examples of individuals from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the United States.

The Second Executive Order clarifies [in section 3(a)] that the suspension of entry applies to foreign nationals who (1) are outside the United States on its effective date of March 16, 2017, (2) do not have a valid visa on that date, and (3) did not have a valid visa on the effective date of EO-1 — January 27, 2017. Section 2(c) does not bar entry of lawful permanent residents, dual citizens traveling under a passport issued by a non-banned country, asylees, or refugees already admitted to the United States.

The Second Executive Order also includes a provision that permits consular officers, in their discretion, to issue waivers on a case-by-case basis to individuals barred from entering the United States.

The Second Executive Order retains some — but not all — of the First Executive Order's refugee provisions. It again suspends [in section 6(a) the United States Refugee Admissions Program (USRAP)] for 120 days and decreases the number of refugee admissions for fiscal year 2017 by more than half, but it does not include the indefinite ban on Syrian refugees. The Second Executive Order also eliminates the provision contained in EO-1 that mandated preferential treatment of religious minorities seeking refugee status. It explains [in section 1(b)(iv)] that this provision "applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion." It further explains [in section 1(b)(iv)] that EO-1 was "not motivated by animus toward any religion," but rather was designed to protect religious minorities.

After reviewing statements that the president made (including on the campaign trail), as well as statements of his surrogates, the Fourth Circuit concluded:

EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2's primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon's purpose prong in violation of the Establishment Clause. Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The administration appealed this decision, as well as a decision from the Court of Appeals for the Ninth Circuit that enjoined section 2(c) and other provisions in of EO-2. In a per curiam order issued on June 26, 2017, the Supreme Court granted the government's requests to stay the two circuit court orders enjoining those provisions, "to the extent the injunctions prevent[ed] enforcement of [section 2(c) of EO-2] with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." It left the "injunctions entered by the lower courts in place" however "with respect to respondents and those similarly situated."

The Court explained that under its order, section 2(c) of EO-2:

[M]ay not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member ... clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.

The 90-day restrictions set forth in section 2(c) of EO-2 expired on September 24, 2017. On that day, the White House issued a proclamation setting forth new travel restrictions, as I detailed in an October 3, 2017, post.

That proclamation was the product of a review mandated by other provisions in section 2 of EO-2. Specifically, section 2(a) of EO-2 directed:

The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence [(DNI) to] conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.

Pursuant to section 2(b) of EO-2, after that review was completed, the Secretary of Homeland Security, Secretary of State, and DNI were directed to:

[S]ubmit to the President a report on the results of the worldwide review described in subsection [2](a), including the Secretary of Homeland Security's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of [EO-2].

As section 1(c) of the September 24, 2017, proclamation stated:

Section 2(a) of Executive Order 13780 directed a "worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat." That review culminated in a report submitted to the President by the Secretary of Homeland Security on July 9, 2017. In that review, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, developed a baseline for the kinds of information required from foreign governments to support the United States Government's ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat. That baseline incorporates three categories of criteria:

(i) Identity-management information. The United States expects foreign governments to provide the information needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be. The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.

(ii) National security and public-safety information. The United States expects foreign governments to provide information about whether persons who seek entry to this country pose national security or public-safety risks. The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government's receipt of information about passengers and crew traveling to the United States.

(iii) National security and public-safety risk assessment. The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.

As a result of this review, the Secretary of Homeland Security determined that Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen "continue to have 'inadequate' identity-management protocols, information-sharing practices, and risk factors. While the secretary of Homeland Security also determined "that Iraq did not meet the baseline," she concluded "that entry restrictions and limitations under a Presidential proclamation are not warranted." Instead, she recommended "that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States."

Having considered these findings and recommendations, the administration decided to restrict and/or limit entry by nationals of the aforementioned seven countries into the United States.

The Supreme Court noted in its most recent order that because section 2(c) "'expired by its own terms' on September 24, 2017, the appeal no longer presents a 'live case or controversy.'" The Court continued: "Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to" EO-2.

The importance of this aspect of the Court's decision was explained by Andrew McCarthy yesterday in National Review:

A win on the mootness point alone would have been a hollow victory. The administration badly needed to prevail on the matter of vacating the lower-court decisions. These rulings rested on damaging legal and factual conclusions that the Justice Department wanted to challenge but that the Supreme Court, due to the mootness doctrine, would have been unable to review. This is not an unusual situation. Under Supreme Court precedent (particularly, the 1950 case of United States v. Munsingwear), the "established practice" in the mootness situation is to remand the case to the lower court with instructions that it be dismissed.

This means lower-court rulings that a higher court has not had the opportunity to review should be vacated, which "clears the path for future relitigation of the issues between the parties." The Supreme Court is not required to follow this prudential practice, however, so opponents of the travel restrictions were beseeching the justices to leave the lower-court rulings intact — the better to exploit them in litigation against Trump's new guidance.

Not all of the news for the Trump administration was good, however. On October 10, 2017, the plaintiffs in the Ninth Circuit case filed a Motion for Leave to File a Third Amended Complaint with the federal district court judge who originally heard that case, Judge Derrick Watson of the U.S. District Court for the District of Hawaii. According to that motion, the proposed complaint: "challenges Defendant Donald J. Trump's September 24, 2017, Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats ('EO-3')."

Politico states that Judge Watson has "told government lawyers [on October 10, 2017] ... that he wanted to see a report that the acting homeland security secretary, Elaine Duke, sent to Trump last month detailing country-by-country efforts to step up the vetting of foreigners who apply for visas." This is logically the report described in section 1(c) of the September 24, 2017, proclamation. The Trump administration has purportedly previously asserted "that the report would not be publicly released because it is classified and discusses vulnerabilities in vetting processes used by various countries."

Judge Watson's order exemplifies the fundamental problems with the district and circuit courts' review of these executive orders and the proclamation. Respectfully, it is not clear how Judge Watson plans to use that report, or what expertise he would bring to his assessment of its validity. That report is, however, an issue of the national security, more appropriate for consideration by the political branches of the government, and not a district court judge. Logically, the Secretary of Homeland Security, Secretary of State, and DNI would have had access to all of the intelligence possessed by the United States government in preparing that report. Unless Judge Watson plans on ordering the disclosure of that information (which the government would undoubtedly seek to block), is unlikely that he can render an accurate assessment of the legitimacy of that report or of its conclusions. In any event, what began as a legitimate attempt by the president to protect the United States from external threats is likely to result in even more litigation.

In a November 1942 speech following the British victory in the second battle of El Alamein, Prime Minister Winston Churchill famously stated: "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning." Notwithstanding Judge Watson's order, perhaps the Supreme Court is signaling that this litigation is, at last, reaching the end of its beginning.