[Disclosure: the author is counsel in a different legal challenge to the travel ban.]
A central theme (if not doctrinal claim) in the dissenting opinions in the Fourth Circuit’s IRAP v. Trump opinions yesterday is the worry, as Judge Shedd puts it, that the President will never be able to “free himself from the stigma of bias” that is the factual predicate for the executive order’s invalidation. In the Ninth Circuit en banc consideration of the first travel ban, Judge Kozinski had articulated a similar fear in the course of rejecting judicial reliance on campaign statements, expressing concern that the president would not be able to “try again.”
This argument is revealing—but ultimately insubstantial. An injunction against an official predicated on a judicial finding of improper motive is not a permanent bar to subsequent action by the same official. If anything, consideration of the enduring effects of judicial review in the travel ban cases should console the government’s supporters.
To understand Judge Shedd’s concern, it is helpful to specify the sense in which an injunction against section 2(c) of the March 6, 2017 Executive Order creates a legal impediment to future executive action in the immigration and national space. To use Judge Shedd’s evocative terminology, what precisely is the “stigma” here?
To begin with, the immediate, binding legal effect of a permanent injunction along the lines of the preliminary order affirmed by the circuit court would leave the President and his subordinates a fair measure of discretion. Some technical clarification is needed to make this point, and readers uninterested in civil procedure and its niceties may wish to skip the following two paragraphs.
One measure of discretion arises from the fact that the injunction approved by the Fourth Circuit bars only Cabinet-level and subcabinet-level federal officials from implementing the travel ban, not the President himself. The circuit court vacated the district court’s injunction insofar as it ran against the President directly, relying on earlier Supreme Court precedent to the effect that the chief executive personally is not amenable to relief under the Administrative Procedures Act. It reiterated the Court’s view that such relief should be rarely granted. (Rarely, though, is not never: In subsequent precedent, the Court has suggested that “some claims that the President has violated a statutory mandate are judicially reviewable outside the framework of the APA.” So far, this has not been that case.)
Moreover, nonparties to the Fourth Circuit litigation cannot invoke a final judgment in that court to preclude the government from making arguments. To use the technically apt term, nonmutual offensive issue preclusion doesn’t run against the government, even though district courts have authority in some instances to issue nationwide relief against federal rules. Under what circumstances the nationwide injunction imposed by the District of Maryland with respect to section 2(c) could be enforced if violated in respect to nonparties to the IRAP litigation raises an interesting and difficult question. That difficulty means that there is at a minimum a measure of ambiguity about the injunction’s effects and the specific actions that might constitute a violation, triggering potential sanctions such as contempt.
But these technicalities, I think, are not really animating Judge Shedd’s concern about “stigma”: Rather, I think his concern is that a final court judgment will have precedential effect (not res judicata) effect in respect to presidential action as a matter of the larger legal culture. What matters on this view, I think, is not so much the precise metes and bounds of the injunction, but the question of law decided by a federal court. Further, I take his concern about “stigma” to be a concern particular to President Trump: It is analytically distinct from the concern that the Fourth Circuit understood the scope of judicial review of immigration-related executive orders incorrectly. Such an error, if it existed, would not “stigmatize” a particular president. So something else must be going on.
How then does the rule of law that emerges from the Fourth Circuit bind this President in ways that are potentially objectionable? I think there are three possible ways to answer the question.
First, there is the specific factual finding that “President Trump’s desire to exclude Muslims from the United States” motivated the travel ban’s promulgation, and this motivation violates the Establishment Clause. Perhaps such religious discrimination is desirable. But neither Judge Shedd nor any other dissenting judge has (publicly, at least) articulated the view that a legal rule against religious discrimination in the immigration context is intolerable. Indeed, the absence of such a statement is perhaps independently notable. Let’s therefore set this possibility aside.
Second, the concern about “stigma” may be a concern that any action taken in the immigration space by this White House or its agencies will be fatally and necessarily vulnerable to attack on the basis of improper motive—a kind of “permanent taint.” Consistent with this worry, Judge Shedd expresses concern that “[n]o one has provided a satisfactory response” to the question of when the President will be able to act in this policy domain again.
Neither the majority opinion nor the concurrences in the Fourth Circuit, however, permanently bar the president from acting in the immigration space, even in respect to Muslim-majority countries alone. The specter of permanent disability really is insubstantial.
In its analysis, the majority focused on the “direct, specific evidence of what motivated” the executive orders. Presumably, the same rule of decision would apply in challenges to any subsequent immigration regulation. So would this rule lead inexorably to invalidation? It is quite hard to see what would prohibit the White House from establishing a process for generating such regulation that would be exceedingly likely (if not certain) to withstand judicial challenges. Such a process would be insulated from the White House and political appointees. The special counsel proceeding is one recent, high-salience example of how such insulation is achieved. But far less insulated and unusual a process might provide a pathway to enact an order that would survive judicial review.
Rather, it is quite possible to imagine an alternative response on the part of the White House to the first order’s invalidation that would have led to very different judicial scrutiny today—scrutiny that the executive action would have been much more likely to survive. Hence, imagine if the White House had required publicly requested relevant departmental heads to consider and to propose a new immigration-related regime in respect to terrorism-related risk. Imagine if such bodies had convened internal experts and expeditiously proposed a new measure, supplying some relevant evidence of why it was needed, and presented it to the president. That panel would provide information specific to the individuals or group of individuals covered by a prohibition, hence meeting Judge Keenan’s concern about the factual predicate necessary to trigger the president’s statutory authority. Would the litigation now look the same? I am very skeptical.
As Chief Judge Gregory observes for the majority, the White House did endeavor (albeit half-heartedly) to follow this path, soliciting among other things a report from the Office of Intelligence and Analysis (“OIA”) of the Department of Homeland Security. The problem (from the administration’s perspective) was that the OIA action didn’t support the rule it intended to promote. Hence, the actual process did not support the result promulgated into law.
None of the dissenting opinions in IRAP, tellingly, discuss this. Instead, Judge Niemayer relies on assertions about security conditions in the six nations covered, rather any finding about the nationals whose “entry … would be detrimental to the interests of the United States.” By switching from persons (as the statute requires) to nations—a distinction Judge Keenan rightly underscores–Judge Niemayer not only disregards the statute’s text, he also obscures the ad hoc process used, the absence of empirical support for the actual policy adopted, and intragovernmental opposition to the second order—facts that are central to the majority’s analysis.
The fact that the dissent’s own analysis has to depart from the statutory text and carefully sidestep post-inauguration executive branch conduct in order to reach its conclusion suggest that the dissent is cognizant of those powerful facts—and, by implication, aware that a different set of enactment-related facts very well might have led to a different result. In short, the dissent’s own silences speak to its own implicit recognition that the White House might have steered matters in a different direction, in ways that might have influence the courts’ approach to the case.
A third possibility, finally, is that Judge Shedd and others are concerned not that the “stigma” of invalidation will bar future action—as we have seen, this is an implausible speculation—but rather that the recognition of stigma will make it marginally more difficult for this Administration to enact national security-related immigration rules. The dissent’s implicit logic then is that this increment of larger enactment cost is so significant and impactful that it warrants judicial deference. Indeed, given the dissent’s focus on facial neutrality, its logic is that the increase in enactment cost at the margin is so important that the president must be given a categorically free hand to engage in invidious discrimination in immigration enforcement.
Although this is the most analytically coherent version of the dissent’s argument, I think it is an indefensible claim. Judicial doctrines of deference to the executive on matters of national security—none of which are directly required by the Constitution—are predicated on an assumption of comparative institutional advantage: The executive not only knows more, but has the right incentives. But where there is evidence that these conditions are not fulfilled—as has been abundantly made plain here—the basis for such deference fails. One might respond by saying that deference doctrines have to be applied in a categorical fashion to good administrations and to bad. But assuming that courts have some ability to sort administrations, there is simply no cause for this sort of blanket assumption.
In any event, the assumption that procedural requirements to security-related action are necessarily deleterious to national security is false. Screening rules select for executive action that is justified rather than unjustified, insulate against the seepage of partisan incentives, and insulate against improper stereotypical thinking. If we must have a security state, then it is hard to see why it should not be thoughtful rather than reckless. The best response to this third reading of the dissenters’ “stigma” argument, is, in short, so what?
But even if the logic of “stigma” offered by the IRAP dissenters is not persuasive on its own terms, I think it is telling in another way: It illuminates, indirectly, a deeper contestation embedded within this litigation.
It is hard for me at least to ignore Judge Shedd’s ironic repurposing of the term “stigma.” I find it striking that one can look at the pattern of events leading up to the travel ban’s imposition, including a catalog of statements by the president and allies maligning a discrete religious minority, and find stigma only in the judicial response to invidious stereotyping. I suspect those Americans subject to the post-election uptick in hate crimes and hate speech being of their perceived faith identity might be able to cast a different light on what counts as being “stigmatized” these days.
Rather, to see only the President as the object of “stigma” is a way of asserting the mantle of victimhood, and claiming the moral high ground. It is a way of doing so that sidelines the harms unquestionably imposed on citizens and noncitizens by the executive order, and suppresses the current of religious discrimination in our polity more generally as irrelevant.
In this way, the dissent’s argument about “stigma” is independently an example of what the English philosopher Miranda Fricker calls “hermeneutical injustice”: By taking a term used by a disempowered group to describe their own experience, and repurposing that term to defend the state’s power to discriminate, it both denies the possible existence of present discrimination and undermines minority groups’ ability to describe experiences of bias in the future.
This judicial repurposing of stigma occurs in a distinct political context. Scholars such as Arlie Hochschild and Katherine Cramer have observed that the 2016 election turned for many on perceptions of contempt by cultural and economic elites on the one hand, and impinging threat from racial minorities on the other. From the perspective of such voters, the travel ban and like policies matter less because they have any material effect, but rather because they are reassertions of a deeply felt understanding of the social order. That the travel ban indeed has a symbolic political purpose of this ilk rather than a security one is suggested by the fact that the putative justification for the measure—to allow a policy review process to occur—no longer exists (since the time needed for that review process has elapsed) and yet Attorney General Sessions loudly insists on the need to press on with the litigation. But because the order is not about security—but about the politics of dignity—appeals will continue.
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