Did the Supreme Court Tip Its Hand on How It Will Rule on the Travel Ban?

Today, the Supreme Court partially stayed and partially upheld the lower court injunctions in the travel ban litigation. The way in which the Court split the baby is perhaps the most significant hint yet about how the Court is thinking about the rights of noncitizens and the so-called “immigration plenary power”—the so-called extra-constitutional authority of the Executive Branch to regulate immigration without standard review by federal courts.

The Court rejected the government’s stay application with respect to parties who are similar to the plaintiffs who actually filed suit–Doe, Dr. Ismail Elshikh, and Hawaii. As a result, Section 2(c) of the Executive Order “may 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.” On the other hand, for foreign nationals with no connection to the United States, the Supreme Court stayed the injunction–meaning that Section 2(c) of the travel ban can now go into effect and bar such individuals from entering the United States (at least until the current expiration date on the Executive Order).

The Court’s reason for treating these two groups of noncitizens differently is intriguing, and could be extremely significant if the Court ever ends up having to decide the case on the merits. Here’s what the Court said:

But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. See id.[Kleindienst v. Mandel], at 762 (“[A]n unadmitted and nonresident alien . . . ha[s] no constitutional right of entry to this country”). So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.

First things first: it is important not to read too much into this passage of the Court’s per curiam decision. As the partial dissent by three Justices makes plain–if it weren’t already to close watchers of the current Court–there are almost certainly serious disagreements among the Justices about the right way to think about constitutional challenges to federal immigration policies, as well as about the best understanding of the rights of noncitizens in our constitutional system. Perhaps for that reason, the per curiam decision mostly puts its reasoning in the mouth of the lower courts that granted the preliminary injunctions rather than telegraphing to us how the Court itself will decide. Foreign nationals with no U.S. connection are different, the decision notes, because “the courts below did not conclude that exclusion [of such a foreign national] would impose any legally relevant hardship on the foreign national himself. So whatever burdens may result from enforcement of 2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.” Get that? It is what the lower courts concluded about the facts and in essence told the Court, not necessarily the Court’s independent judgement. Hence, the Court may yet decide that even unconnected foreign nationals face legally relevant hardships under the Executive Order’s application.

Still, the Court does make the absence of “any legally relevant hardship” central to its decision to permit the government to begin excluding, under Section 2(c), foreign nationals with no connection to the United States. So that leads to the obvious question: what could the Court be hinting at here? There are at least two important possibilities:

The first is that foreign nationals with no connection to the United States simply would not have standing to sue to challenge section 2(c) of the Executive Order. Under the Supreme Court’s standing jurisprudence, Article III requires that a party have suffered a concrete injury in order to sue in federal court. And as the Court concluded, the hardships for unconnected foreign nationals are “a good deal less concrete” than the hardships for those with some connection. If this is what the Court is suggesting, the decision today, letting the government apply 2(c) to this class of noncitizens, does not mean much for the Court’s ultimate thinking about the constitutional rights of noncitizens. At least five members of the Court might well believe that open religious discrimination against noncitizens would violate the Equal Protection and/or Establishment Clauses. They might just believe that a noncitizen abroad, with no prior connection to our country, lacks Article III standing to go to a federal court to challenge that otherwise unconstitutional discrimination.

Such a view would be consistent with a lot of historical immigration jurisprudence, including at least one reading of Kleindienst v. Mandel, a famous plenary power case whose meaning has been the subject of substantial disagreement and is quoted by the per curiam opinion. (For more elaboration of the role of Article III standing ideas in immigrants’ rights cases, see this piece I wrote some years ago on immigrants’ rights, standing doctrine, and the so-called immigration “plenary power.”)

But, of course, the passage that the Court quotes from Mandel has been read by some lower courts to mean something much more radical. In that passage, the Mandel Court wrote that “It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country.” The idea that noncitizens with no prior connection to the United States have “no constitutional right of entry” into the country is an old one. And it makes perfect sense when it is understood in the context in which it was traditionally deployed– assessing whether the procedures the government used to exclude a person were permissible. In this due process context, the core question was whether the exclusion of the noncitizen deprived them of life, liberty, or property under the Fifth Amendment. If not, then there could be no complaint that, under the Due Process Clause, the government was required to have used more elaborate procedures prior to making its decision. Because if the denial of entry did not deprive the person of an interest protected by the Fifth Amendment’s Due Process clause, then no more process was compelled by the Constitution. The lack of a “constitutional right of entry” has often been used by the Court as a shorthand for this due process reasoning.

Nonetheless, some lower courts have read the “no constitutional right of entry” language in Mandel imprecisely–as being the equivalent of the Court saying that noncitizens have no constitutional rights when they are denied entry. This latter formulation, while only subtly different as a linguistic matter, is potentially radically different as a legal one. Having “no constitutional right of entry” simply means that a person cannot argue that the Constitution compels her entry. But having “no constitutional rights” with respect to any denial of entry would mean that the Constitution imposes no limits on the government’s decision to exclude the noncitizen. If that is the case, then the government can exclude the noncitizen on the basis of race, or religion, or any otherwise constitutionally prescribed ground, without violating the Constitution.

In other areas of American constitutional law, we would never say, simply because a person lacks a constitutional right to receive some benefit, that the government can deny that benefit for any reason it wants without violating the Constitution. Consider public education. It is black letter constitutional doctrine that there is no constitutional right to a free public education. But, of course, no one thinks that means that the government can deny a person access to a free public education on the basis of her race or religion. This basic distinction, between liberty claims (where the deprivation is itself the injury) and equality claims (where the injury flows from the distinctions drawn between different classes) runs through virtually all of constitutional law. But reading language stating that (some) noncitizens have “no constitutional right of entry” to the U.S. as insulating the government’s exclusion decision from equal protection principles would make hash of that fundamental jurisprudential idea. Were the Supreme Court to take Mandel in that direction it could wreak havoc across a range of constitutional rights.

Given those implications, it seems the safer assumption, for now, is that the Court’s reasons for permitting the Executive Order to go into force with respect to foreign nationals without U.S. connections are narrow ones related to Article III standing, not sweeping ones that would portend an absence of any constitutional constraints on the government’s power to exclude those noncitizens. At least, that’s the conclusion with which a fine-grained reading of the per curiam’s key passages leaves us. Put another way, come next term, five or six Justices may rule that the President has unconstitutionally discriminated against immigration applicants, including those with no prior ties to the United States, due to anti-Muslim animus. Of course, the remedy may not be for such individuals to gain entry to the United States. But such an outcome, under which the all applications of Section 2(c) are deemed unconstitutional, would be in keeping with the decision in Mandel.

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About the Author(s)

Adam Cox

Robert A. Kindler Professor of Law at NYU School of Law. Follow him on Twitter (@adambcox).