[UPDATED: As of Feb. 6th; 6:00 p.m.] Getting a handle on the litigation challenging the seven-nation “travel ban”

 

The President’s Executive Order is only eight days old, and already there are many cases challenging it in federal court. The suits have been brought by many different categories of aliens, as well as some States and other U.S. plaintiffs, challenging several different provisions of the E.O.–but mostly section 3(c), the temporary ban on entry of immigrants and nonimmigrants from seven Muslim-majority nations (which has colloquially been referred to as the “travel ban” provision).

Plaintiffs have asserted an array of grounds for relief from implementation of section 3(c), the most prominent of which include:

(i) an absence of statutory authority (i.e., questioning whether section 3(c) falls within the scope of Congress’s delegation to the President under 8 U.S.C. 1182(f)–here’s a useful CRS Report on the historical use of that presidential authority; and here’s some preliminary thoughts from Rick Hills and myself on the prospects of such a statutiry argument);

(ii) a violation of 8 U.S.C. 1152(a)(1)(A), which prohibits discrimination in the issuance of immigrant visas on the basis of, inter alia, nationality or place of residence;

(iii) denials of due process in violation of the Fifth Amendment;

(iv) the absence of a rational basis for singling out aliens from the seven specified nations, in violation of the equal protection component of the Fifth Amendment (here’s an interesting post from Peter Spiro suggesting that this might finally be the case that tests whether there’s any limits to judicial deference on that question in the immigration context); [UPDATE] as I explain in a comment to Rick Hill’s post here, this argument might better be viewed as an application of the doctrine that a “patently arbitrary classification, utterly lacking in rational justification,” is a denial of due process that the Fifth Amendment prohibits; and

(v) de facto religious discrimination in violation of the equal protection component of the Fifth Amendment and/or the Establishment Clause of the First Amendment.  (As Adam Cox explains, the so-called “plenary power” doctrine may not preclude the application of such constitutional protections.  In addition, as Chip Lupu and Bob Tuttle point out, the Establishment Clause objection rests on a structural constraint on governmental power that does not depend on whether the aliens in question have a particular constitutional “right”:  “The Clause is in the Bill of Rights, but it does not function as an individual ‘right.’  Instead, it imposes a limit on the character and jurisdiction of the government.”)

It is very difficult to keep track, in anything approaching real time, of the various arguments by all the parties and the government, and the actions of all the courts.  Fortunately, the Civil Rights Litigation Clearing House has established a website with links to many of the filings and orders in most or all of the cases–19 to date.  A site well worth bookmarking.

As many Just Security readers know, last evening Judge James Robart of the Western District of Washington issued a temporary restraining order in State of Washington v. Trump, the case brought by the States of Washington and Minnesota.  In addition to the merits questions, this particular suit raises very interesting questions of the States’ Article III standing to sue.  The States’ primary (but not exclusive) asserted injury is that the excluded aliens include students who will be prevented from attending, paying tuition to, and contributing to the mission of, the States’ public universities.

The primary effect of Judge Robart’s order is to temporarily enjoin enforcement of section 3(c)–not only as applied to aliens who would certainly visit or live in Washington and Minnesota, but with respect to all affected aliens–until he can hear the case on the merits.  He also enjoined enforcement of certain provisions of section 5 of the Order, which indefinitely suspends the entry of Syrian refugees, and which also suspends the U.S. Admissions Program for all refugees for 120 days and then imposes procedures on, and priorities respecting, refugee admissions after those six months are up.

Tonight the United States filed a notice of appeal of the order to the U.S. Court of Appeals for the Ninth Circuit.  The court of appeals has already create a webpage that will include links to the pleadings and proceedings in that court.  [UPDATE:  DOJ has now filed a motion for a stay pending appeal.  A two-judge panel denied the government’s motion for an “administrative” stay that would have taken effect immediately.  It scheduled briefing on the government’s underlying stay motion that will be completed by 6:00 p.m. EST (3:00 Pacific) on Monday.  Here is the response of Washington and Minnesota, together with exhibits and an important declaration filed by former Democratic and Republican national security officials.  And here is DOJ’s reply brief.  The court of appeals will hear oral argument by phone tomorrow (Tuesday, Feb. 7) at 6:00 EST (3:00 PST), presumably before Judges Canby, Clifton and Friedland.  A recording will be publicly available shortly thereafter.  In the meantime, back in the district court, the court has approved the parties’ proposed briefing schedule on the motion for a preliminary injunction–briefing will be completed by next Friday, February 17.]

To get a sense of the arguments being pressed by the parties in that case, here are Washington’s motion for the TRO and the government’s opposition.  Better still, here’s a video of the oral argument held yesterday.  In my humble opinion, both of the attorneys–Washington SG Noah Purcell and Michelle Bennett of DOJ’s Federal Programs Section–and Judge Robart did a remarkably fine job under very difficult circumstances and with very little time to prepare.  The judge’s questions, in particular, went right to the heart of many of the most important and difficult issues in the case, both prompting very helpful responses from the advocates and revealing a great deal of the judge’s own thinking, especially on the question of whether the seven-nation limitation is supported by any rational basis (“I have to find that it is grounded in facts as opposed to fiction.”).  I highly recommend watching. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).