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The “Travel Ban” Executive Order as Separation-of-Powers Test Case

The White House’s March 6 executive order “Protecting the Nation From Foreign Terrorist Entry Into The United States” (the March EO or the new EO) is a telling blend of change from and continuity with its January 27 precursor. Its changes signal the (current) strength of traditional institutional resistance from courts and bureaucrats to an insurgent, populist presidency. Its continuities are intriguing hints as to how that insurgent presidency might (in the future) seek to tame those institutional bulwarks that currently impede its agenda. How those efforts unfurl will shape the nature of the separation of powers in coming years.

On its face, this week’s order seems a substantial recession from the January 27 order as a direct result of the constitutional concerns aired by the Ninth Circuit Court of Appeals and Eastern District of Virginia. Section 1(i) states that the new order “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns.” And section 1(iv) repudiates “animus toward any religion” as the basis for January EO, a nod to concerns about religious discrimination raised by both courts.

Notwithstanding Stephen Miller’s widely discussed comments on judicial review, the new EO opens with an explicit recognition of the federal courts’ authority. Courts—and constitutional law—are expressly identified as a constraint on a president who has mocked the courts.

The constraining role of law in earlier regimes has been observed by many commentators, such as Rick Pildes and myself, in scholarly work published before the 2016 election. Indeed, a range of recent academic work has illuminated the ways in which lawyers within the executive have shaped policy. 

But this effect of law (as applied by executive branch insiders) is quite distinct from the notion that courts can stand in the way of a high-profile White House policy initiative in the national security domain.  Indeed, for scholars of American judicial review or the separation of powers, the story so far should be rather striking: Against a backdrop of pervasive scholarly anxiety over the efficacy of judicial intervention against presidential over-reaching, here is a case in which courts were not just willing to act, but in which judicial intervention seems to have had direct and fairly unmediated effect.

The efficacy of judicial review is all the more striking when set against the courts’ recent record in remedying harms flowing from national security policy. As James Pfander has explained in a terrific new book, this score-card is replete with government wins, with few consolations for injured plaintiffs. And what victories do obtain quickly prove hollow comfort. As I explore in a forthcoming article, the Court’s landmark decision in Boumediene v. Bush in fact had scant effect on executive-branch practice.

The effect of judicial review is evident in what the new EO both does and doesn’t change. The Ninth Circuit underscored centrally Due Process concerns, and the new EO in sections 3(a) and (b) excludes categories of noncitizens most likely to raise such constitutional worries: green-card holders and existing visa-holders. (Dual nationals with a nationality not among the new list of proscribed countries are also excluded from the new EO’s reach, although they might not raise the same Due Process concerns).

Under section 12(b), those who had valid visas revoked under the January EO are entitled to a “travel document confirming that the individual is permitted to travel to the United States and seek entry.” Asylum seekers are also no longer barred from pressing their claim to refuge from persecution under the same section.

But not all the new order’s responses to Due Process concerns are an unmitigated good for migrants. Certain noncitizens, notwithstanding their lack of a current visa, with “significant contacts” with the U.S., or in need of “urgent medical care” can seek a case-by-case waiver at the discretion of Customs and Border Patrol (CPB) officials under Section 3(c) of the new order. But they must show “undue hardship” to qualify, a term that might be read in parallel to the very onerous “extreme hardship” standard for waivers of deportation. Further, the noncitizen’s entry must “not pose a threat to national security” and “be in the national interest.” Given that section 1(h) of the order cites the case of a Somali admitted as a child refugee who turned to violence only after becoming an adult, CBP officials might plausibly gloss the order to bar waivers unless a noncitizen can demonstrate that they won’t be threat today, tomorrow—and also twenty years from now. Finally, the waiver power in Section 3(c) might be used strategically to moot litigation by granting relief to named plaintiffs, hence deflecting further judicial review of the order.

The Eastern District of Virginia, in contrast to the Ninth Circuit, emphasized concerns about the motivating force of animus against Muslims.  The new EO recognizes this concern, but its response is far more ambiguous in effect. A central question in the litigation that will be ongoing on behalf of Washington, Hawaii, and other plaintiffs is whether the concern about animus has in fact dissipated.

To be sure, the new order’s preamble expressly disavows animus, and its body omits a priority rule for religious minorities in refugee admissions. This was earlier perceived as an implicit thumb on the scales in favor of Christian over Muslim refugees given President Trump’s statements on the topic.

The scaling back of language that links Islam to violence and terrorism is, however, partial. The January EO contained preamble language citing “violent ideologies [placed] over American law.” It subtly linked that ambiguous phrase to Islam by citing “honor killings,” which are often (if incorrectly) assumed to be motivated by Islamic beliefs. Contrary to the administration’s claims, that order was thus not neutral on its face, but rather betrayed the same orientation toward Islam that the President and his team had vocalized repeatedly in both the campaign and in office.

In this regard, it is striking that section 11(iii) of the new EO again invokes “honor killing” again as an axiomatic form of “gender-based violence” as a distinctively important threat. But is that so? One in three women suffers physical violence at an intimate’s hands during their lifetime (quite apart from physical assaults by “grabbing” strangers). In this context, it is odd (and unexplained) why so rare a form of iniquitous violence would be singled out given the pervasiveness of immoral and illegal violence against women.

Perhaps then, the most interesting element of the litigation likely to continue will turn on claims of religious animus. In the Establishment Clause, the Supreme Court has been willing to think closely about how intervening state action can dissipate an unconstitutional motive.  (Nelson Tebbe, Richard Schragger, and Micah Schwartmann have written about that case law here). But the First Amendment is not the only context in which state actor rescind and repromulgate slightly amended rules to escape motive-based constitutional invalidation. In a series of cases from the early twentieth century, the Supreme Court invalidated a sequence of Texas efforts to block African-Americans from voting. The so-called White Primary Cases demonstrate that even relatively conservative courts can police the attempted circumvention of constitutional norms via the tactic of withdrawing and reissuing rules on a purported clean slate.

By contrast to the constitutional claims raised by the Ninth Circuit and the Eastern District of Virginia, the statutory basis for the order has received little refinement. (Of course, the fact that an executive action is authorized by statute doesn’t mean that it is necessarily compliant with rights-related or other restrictions in the Constitution.). The order rests on two provisions of the Immigration and Nationality Act that grant the president authority to regulate “entry,” which is distinct from the statutory power to regulate visas. The latter, however, is cabined with a rule against national-origin discrimination. This gap, eloquently discussed by Ian Samuels, remains in the absence of close judicial attention to the scope of statutory authority. The brief filed on Thursday by the state of Hawaii, however, places these statutory arguments front and center—making them more likely to receive review in the coming litigation.

If the order is a testament of sorts to the institutional strength of the federal judiciary, it also provides hints of how both the judiciary and the bureaucracy can be circumvented by an administration determined to pursue populist ends in two different ways.

First, the express recognition of judicial constraint may be a way for the White House to lay the groundwork for blaming federal courts for any new terrorist violence. This is probably true, but also probably not especially important. I find it hard to believe that this White House would not take an extremely bellicose approach to judges, hostile legislators, and critics in the general public in the event of another terrorist attack regardless of what happens with the travel ban. The presence or absence of language in the new order will ultimately not matter much given this White House’s temperamental quality and its scant regard for nuance or factual detail.

Second, the new EO invokes the authority of the White House to justify the selection of six countries for special scrutiny and restraint. But there remains a puzzling gap between the facts as asserted by the President, and the facts as supported by the known bureaucratic record. This gap is a way for the White House to test its ability to exploit longstanding norms of judicial deference to executive-branch expertise when state power is used not on the basis of epistemic competence but instead deployed from a logic of populist outrage

The gap arises between the proffered justification for selecting six countries (all of the originally proscribed nations minus Iraq) and the known strength of that justification. The new EO quite literally (and expressly) cribs text from the Department of State’s 2015 Country Reports on terrorism to explain why those countries’ “nationals continue to present heightened risks to the security of the United States.”  The borrowed language is boilerplate. It largely concerns country-wide security conditions. It does not focus on the question whether the entry or immigration of citizens of those countries has, historically, posed an incrementally greater risk of terrorism than the entry of other countries’ citizens.

But, as many others have noted, recent reporting has suggested that the Department of Homeland Security has analyzed terrorism-related risks of different nationalities and found no reason to single out the six countries in the revised order. State Department databases apparently tell a similar story. Hence, the government’s own security agencies fail to find a security justification for the ban, and so the ban on its face falls back on anodyne boilerplate claims about the general security situation in relevant nations.

Given this gap between institutional expertise and asserted fact, it seems fair to ask whether the security justifications given on the face of the report are pretextual. And it also seems worth asking whether the animus so sharply and clearly evinced by many members of the administration, and so starkly evident to those who saw the January EO’s rollout, has been dissipated by the deployment of some legalistic language and a dash (however tepid) of the interagency.

But courts typically give the executive a measure of what Bobby Chesney (in an excellent and incisive academic work) has called “national security fact deference.” If the White House can secure that deference even when there is no colorable basis for such deference—indeed, even when the Administration’s own experts reject the factual premises of a policy—this will make a substantial victory for the populist insurgency. For it create a degree of freedom for the White House from the internal constraints of more cautious, fact-bound bureaucratic hands. It will, ironically, be a defeat of the administrative state at the hands of judicial doctrines cultivated assiduously by the ecosystem of federal agencies since the 1932 case of Crowell v. Benson. The bureaucracy would become its own gravedigger.

The new EO, in short, affirms that the White House may be willing to exercise its wide discretion in a way that asserts expertise and knowledge while circumventing the actual centers of expertise within the federal government.  So much has been clear from the treatment of expert agencies such as the EPA so far. It also shows that the Administration may just be canny enough to leverage the deference doctrines developed in the national security and immigration contexts in particular so as to undermine the authority and power of internal expertise. This sort of strategic capture of the high ground of administrative expertise to pursue populist ends at the expense of well-warranted fact, would be a form of legitimation that would powerfully serve this White House in coming years.

Image: Eduardo Munoz Alvarez/Getty.

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About the Author

( is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School.