The Supreme Court issued an order last week granting certiorari to review the Ninth Circuit's latest decision in Trump v. Hawaii (Hawaii), which addresses the validity of Presidential Proclamation 9645 (September 24, 2017, EO-3), captioned "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats".
I have written extensively on the various efforts by the administration to institute reasonable restrictions on the entry of certain nationals from specific countries, through Executive Order 13769 (EO-1), Executive Order 13,780 (EO-2), and EO-3, and the various appeals of those decisions to the Court of Appeals for the Ninth Circuit and the Court of Appeals for the Fourth Circuit.
By way of background, on January 27, 2017, President Trump issued 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. It did so 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, as suggested by the Ninth Circuit, the president issued a new executive order (EO-2), which was also captioned "Protecting the Nation from Foreign Terrorist Entry into the United States".
In section 2(c) of EO-2, the president suspended the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days from the effective date of that order, subject to certain "limitations ... and exceptions", including for lawful permanent residents, dual nationals, aliens granted asylum, and refugees already admitted. These countries were so identified, the order explained, because conditions in each (as detailed in section 1(e) of EO-2) "demonstrate" that nationals of those countries "present heightened risks to the security of the United States." Section 3 of EO-2 also provided waivers of section 2 on a "case-by-case basis" for affected foreign nationals.
Section 6(a) of EO-2 suspended decisions on refugee applications for 120 days, and section 6(b) of that order capped the number of refugees to be admitted in FY 2017 at 50,000. Section 6(c) of EO-2 allowed for "case-by-case" waivers of the suspension in section 6(a).
In Trump vs. International Refugee Assistance Project (IRAP), the Fourth Circuit reviewed a district court decision enjoining, on a nationwide basis, section 2(c) of EO-2. The circuit court held, after reviewing statements by the president (including on the campaign trail) and his surrogates:
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 court affirmed a district court injunction of section 2(c) of EO-2, but reversed the district court's injunction against the president himself.
On or about June 1, 2017, the Department of Justice filed a petition for writ of certiorari, asking the Supreme Court to review the Fourth Circuit's decision.
Thereafter, on June 12, 2017, in Hawaii, the Court of Appeals for the Ninth Circuit reviewed a district court decision enjoining, on a nationwide basis, sections 2 and 6 of EO-2. As I explained in a June 14, 2017, post:
In its decision, the Ninth Circuit found that the district court judge's injunction of the president himself was in error, concluding that the injuries asserted by the plaintiffs there could "be redressed fully by injunctive relief against the remaining Defendants." It affirmed the district court's "injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending USRAP for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017," but vacated "the portions of the injunction that prevent the Government from conducting internal reviews, as otherwise directed in Sections 2 and 6."
In a per curiam order issued on June 26, 2017, the Supreme Court granted the government's request for certiorari and partially granted the government's application to stay preliminary injunctions in those two circuit court decisions that enjoined, in part, provisions of EO-2. To summarize, the Court essentially narrowed the lower court injunctions on specified provisions of EO-2 to "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States."
The government began to enforce the provisions of EO-2 that were not subject to injunction on June 29, 2017. As CNN reported:
The new guidelines provide that applicants must prove a relationship with a parent, spouse, [fiancé], child, adult son or daughter, son-in-law, daughter-in-law or sibling in the US in order to enter the country.
Other family members -- including grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, and any other "extended" family members will not be considered "close family" under the executive order.
In a subsequent July 13, 2017, order from the District Court of Hawaii in Hawaii, Judge Derrick Watson enjoined the Departments of Homeland Security (DHS) and State (DOS) from "[a]pplying section 2(c), 6(a), and 6(b)" of EO-2 "to exclude grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States," as well as from applying sections 6(a) and 6(b) "to exclude refugees who: (i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in [USRAP] through the Lautenberg program." The Supreme Court declined to review that decision.
On September 24, 2017, the president issued EO-3, which I described in detail in an October 3, 2017, post. Most significantly, however, EO-3 orders restrictions and/or limits on entry by nationals of Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen, as follows:
The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of Iran as immigrants and as nonimmigrants be suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements.
The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of North Korea as immigrants and nonimmigrants be suspended.
The entry into the United States of nationals of Syria as immigrants and nonimmigrants be suspended.
The entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures -- including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations -- and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended. It also ordered that nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current. The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, be suspended.
The entry into the United States of nationals of Somalia as immigrants be suspended. In addition, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.
The next day, the Supreme Court issued an order removing IRAP and Hawaii from its oral argument calendar, and asked lawyers in those cases to submit briefs by October 5, 2017, addressing whether, or to what extent, the proclamation rendered the cases moot. As the New York Times reported, the Court also:
[A]sked for briefings on a question not addressed in the proclamation, concerning the earlier ban's suspension of the nation's refugee program. That suspension is scheduled to expire [in November 2017]. On that question, too, the [C]ourt asked the parties to explain whether the issue would soon be moot.
In a summary disposition issued by the Supreme Court on October 10, 2017, the Court vacated the decision of the Court of Appeals for the Fourth Circuit in IRAP, and remanded the case to the Fourth Circuit "with instructions to dismiss as moot the challenge to Executive Order 13,780 [EO-2]."
On October 17, 2017, Judge Watson of the federal District Court of Hawaii, issued a temporary restraining order in Hawaii, enjoining DHS and DOS from implementing EO-3 against nationals of Chad, Iran, Syria, Yemen, and Somalia. As he stated: "Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court." I discussed that order at length in an October 19, 2017, post.
That same day, Judge Theodore Chang of the federal District Court for the District of Maryland issued an order in IRAP enjoining implementation of section 2 of EO-3 for nationals of Chad, Iran, Syria, Yemen, and Somalia, with the exception of "individuals lacking a credible claim of a bona fide relationship with a person or entity in the United States." On October 20, 2017, DOJ filed a motion for stay of that order with the Fourth Circuit.
On October 20, 2017, Judge Watson converted his temporary restraining order into a preliminary injunction. On October 24, 2017, DOJ filed a motion for stay of that preliminary injunction with the Ninth Circuit. On November 13, 2017, the Ninth Circuit granted that motion in part, staying Judge Watson's preliminary injunction "except as to 'foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States'." On November 20, 2017, DOJ filed an Application for Stay Pending Appeal to the Ninth Circuit of that injunction with the Supreme Court.
On December 4, 2017, the Supreme Court issued a stay pending appeal to the Fourth Circuit of the district court's preliminary injunction in IRAP, as well as a stay pending appeal to the Ninth Circuit of the district court's preliminary injunction in Hawaii. In each of those orders, the Court stated: "In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch."
As I stated in a December 6, 2017, post:
Those orders are exceptional for two reasons. First, they do not limit the application of EO-3 in the manner that [the Court's] earlier order limited EO-2, to exclude from its reach foreign nationals with a credible claim of a bona fide relationship with a person or entity in the United States.
Second, the fact that the Court issued those orders pending lower-court action, and the terse language in each, suggests that the justices may not be pleased with the treatment that the president's travel orders have received at the hands of the district and circuit courts. As the editorial board of the Wall Street Journal put it:
This is an important moment for the rule of law. The Supreme Court had already intervened once to rebuke the lower courts over Mr. Trump's initial travel ban, but judges ignored the warning and kept overturning modified versions with injunctions that blocked their implementation even before considering the merits. Yet the executive has considerable latitude on immigration and national security, as the Justices seem to recognize.
Thereafter, on December 22, 2017, the Ninth Circuit issued its decision in Hawaii. In that decision, the circuit court concluded that the plaintiffs were likely to succeed on their claims that the president in EO-3 exceeded his statutory authority under section 212(f) of the Immigration and Nationality Act (INA) and had failed to satisfy that provision's requirement "that prior to suspending entry, the President must find that entry of the affected aliens would be detrimental to the interests of the United States." Section 212(f) of the INA states, in pertinent part:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
(a) Unless otherwise ordered by the President, it shall be unlawful-
(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe ...
Finally, it found that the plaintiffs therein "had shown a likelihood of success on the merits of their claim that [EO-3] runs afoul of" what it deemed the "prohibition on the nationality-based discrimination" in section 202(a)(1)(A) of the INA. That section of the INA provides:
Per Country Level. -
(1) Nondiscrimination. -
(A) Except as specifically provided in paragraph (2) and in sections 101(a)(27) , 201(b)(2)(A)(i) , and 203, 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.
The circuit court declined to consider the plaintiffs' claim that EO-3 "violates the Establishment Clause of the United States Constitution." Plaintiffs had urged the circuit court to adopt the view of the Fourth Circuit in its May 25, 2017, decision in IRAP "that 'the reasonable observer would likely conclude that EO-2's primary purpose [was] to exclude persons from the United States on the basis of their religious beliefs.'" The court held, rather: "Because we conclude that the district court did not abuse its discretion in granting the preliminary injunction relying on Plaintiffs' statutory claims, we need not and do not consider this alternate constitutional ground."
The circuit court, however, narrowed the scope of the district court's "injunction to give relief only to those with a credible bona fide relationship with the United States," and stayed its decision "pending Supreme Court review" in accordance with the Court's December 4, 2017, order in Hawaii.
As SCOTUSBLOG describes the Court's certiorari order:
In granting the government's petition, the justices agreed to consider the three questions presented by the Trump administration: Whether courts can review a challenge to the September 24 order at all; whether the order falls within the president's authority over immigration; and whether the district court's order applies too broadly. They also agreed to take up a fourth question, broached by Hawaii: whether the September 24 order violates the Constitution's establishment clause, which (among other things) bars the government from favoring one religion over another.
Interestingly, the Fourth Circuit heard oral argument in IRAP on December 8, 2017, but, despite the Supreme Court's direction in its December 4, 2017, order in that case that the Fourth Circuit "render its decision with appropriate dispatch," it has yet to issue a decision.
A January 6, 2018, article in the Daily Caller notes:
The last time the U.S. Supreme Court intervened in the travel ban cases, it ordered two circuit courts then considering travel ban challenges to render their decisions quickly.
A month later, one of those courts, the 4th U.S. Circuit Court of Appeals, has yet to produce its opinion on the administration's latest travel sanctions. This continued delay suggests that the court is strategically withholding its ruling, so as to sabotage President Donald Trump's signature immigration policy.
The longer the 4th Circuit waits, the more it appears that the court is purposefully withholding its ruling to ensure that it can't be reviewed by the Supreme Court until much later this year.
This strategy — sit on the opinion for as long as possible — requires that the 4th Circuit issue a ruling on different grounds than the 9th Circuit's, since a Supreme Court ruling overturning the 9th Circuit would also vacate the 4th Circuit's ruling if they are based on the same principles.
If the 4th Circuit follows its previous trajectory, it is likely to do so. The court previously found that the travel ban violates the Constitution's establishment clause, which forbids the government from favoring one religion over another. The court reasoned that Trump's tweets and campaign statements reveal animus towards Islam, and that the travel ban is a manifestation of anti-Muslim bigotry.
This rationale is quite different than the 9th Circuit's. Therefore, if the 4th Circuit waits just a few more months — or perhaps just weeks — to issue an opinion blocking the travel ban on establishment clause grounds, [it's] quite possible the policy will be stalled for many months, since the Supreme Court will not have an opportunity to review the ruling until October, if not later.
The article posits that "it's possible" that Fourth Circuit Judge James Wynn (who it describes as "a particularly dogged skeptic of the travel ban") "is withholding a concurring opinion or a dissent, thereby preventing the 4th Circuit from releasing its ruling, and the Trump administration from implementing its travel sanctions."
In reaching [his] conclusion, Judge Wynn apparently fails to understand that (1) the suspension of entry by aliens pursuant to section 212(f) of the INA under section 2(c) of EO-2 is temporary; and (2) that this temporary suspension is necessary for a specific purpose: To enable "[t]he Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence" under section 2(a) of EO-2 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," including whether an alien is inadmissible under section 212(a)(3)(B) of the INA.
Plainly, terrorist aliens are barred under section 212(a)(3)(B) of the INA, but although an alien seeking admission bears the burden of proving he or she "is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212" of the INA, the government generally has to adduce some evidence showing that an alien is or may be a terrorist before this burden applies. The difficulty of obtaining reliable evidence of this sort from the six countries listed in section 2(c) of EO-2 is the reason for the 90-day suspension therein. Judge Wynn's own analysis, taken to its logical conclusion, establishes the validity of that provision.
All of that said, however, the issues involved in this matter are complex, and the Fourth Circuit may simply be struggling with those issues in issuing its decision. Given the Supreme Court's action, however, and its directions on EO-3, the circuit court should "render its decision with appropriate dispatch," thereby enabling the Supreme Court to issue a dispositive ruling.