The Supreme Court Should Rethink Deference to the Executive in the Travel Ban Case

On April 25, the Supreme Court will hear oral argument on the travel ban, and the public will gain insight into whether the Justices appear inclined to defer to the Administration’s asserted national security justifications for the ban. Regardless of the ultimate decision in this case, the Court should take note of the breakdown of internal norms and legal processes within the executive branch that have led to a series of legally unworkable orders in the Administration’s first year—as well as the President’s long public record of animus against the minority groups affected by those policies—and adjust its level of deference accordingly.

Courts ordinarily defer to the judgments of the Executive Branch in areas of national security and foreign policy, and rightly so. That deference arises in part–but not entirely–from our structure of government. Deference also arises in large part from the understanding that the Executive brings significant expertise through the various national security agencies, a synthesis of professional knowledge and experience that courts do not possess. Any deference granted to the Executive should therefore be substantially lessened when it becomes clear that the President’s decision was either not based on expertise or was the product of only nominally bringing expertise to bear to support a decision the President had already made.

To be sure, the Court will not want to issue an opinion undercutting the long record of deference to the Executive’s national security judgments. On the unusual facts of the travel ban case, the Court need not upset its traditional deference doctrines and should show skepticism for the Executive Branch’s actions. The Constitution does not – and cannot – require that Presidential judgments, no matter how quixotic and devoid of the usual underpinnings of good governance, prevail.

In our February 16, 2018 article in the Yale Law Journal Forum, we detailed the ways in which intra-executive legal processes had broken down in the Trump Administration’s first year, and how those failures have played out in the courts. The initial travel-ban, issued only a week into the President’s term, is the archetypal example of this phenomenon. On January 27, 2017, President Trump issued Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (EO-1). EO-1 suspended the entry of all non-citizens from seven countries with predominantly Muslim populations, and directed the Secretary of State to prioritize refugees claiming religious-based persecution “provided that the religion of the individual is a minority religion in the individual’s country of nationality.”

As readers of Just Security know, EO-1 unleashed chaos within the government and across the country. Neither the White House nor the Department of Justice appear to have asked career lawyers within the Department of State, the Department of Defense, the Department of Homeland Security, or any other agency to review EO-1 before it was issued. According to media reports, John Kelly, then the Secretary of Homeland Security, was being briefed on the order via telephone as the President was signing the Order on television. Upon learning of the order, the State Department “immediately stopped conducting visa interviews of, and processing visa applications from, citizens of any of the seven banned countries,” and 60,000 to 100,000 visas were revoked. Meanwhile, nationals of the countries listed in EO-1 arriving in the United States were detained for hours as public interest attorneys across the country raced to the airports to represent them. Thousands protested at the airports and outside courthouses. Several lawsuits followed, with multiple courts issuing nationwide injunctions against enforcement of the executive order. The DHS Inspector General has since confirmed that federal agents openly ignored court orders amidst the widespread confusion of EO-1’s rollout.

On its face, EO-1 contained clear errors that any form of proper legal vetting would have caught. First, its effective date was not forward-dated, a standard policy feature designed to allow agencies time to prepare for the changes in protocol and to avoid precisely the type of chaos that ensued in the nation’s airports. Second, EO-1 appeared to ban legal permanent residents, or green card holders, who had already passed a rigorous vetting process and granted the right of permanent residence in the United States. This error was so glaring that White House Counsel Donald McGahn soon after published a memorandum clarifying that the order would no longer apply to legal permanent residents. The courts summarily rejected the McGahn memo, noting that the White House Counsel cannot amend an Executive Order.

In addition to correcting these obvious errors, Executive Branch lawyers should have also understood the necessity of establishing a record of non-discriminatory policy justifications for EO-1, which would have then countered President Trump’s long record of public statements supporting a “Muslim ban.” During his campaign, President Trump repeatedly called for “a total and complete shutdown of Muslims entering the United States,” and noted that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” Upon signing EO-1, President Trump announced, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” With that public record of animus, executive-branch lawyers bore an additional burden to ensure the executive order was reviewed by the relevant agencies and produced compelling, non-discriminatory justifications that could be offered to improve that troubling record. But the Trump Administration showed no interest in running the sort of bureaucratic process that would have been necessary to produce such a record (if it is possible to do so).

Instead, the Government chose not to offer any viable justification in support of EO-1 to convince the courts that the Order was motivated by anything other than President Trump’s well-documented desire to ban Muslims as a group from entering the United States in violation of the Establishment Clause. As the district courts noted, the extensive record of public statements advocating a Muslim ban and the absence of “any articulated connection between the scope of the ban and particular national security threats” made a “convincing case” that the Order was motivated by discriminatory animus.

Soon after the courts enjoined the ban, the Administration abandoned its arguments in defense of EO-1. On March 6, 2017, President Trump issued the re-written Executive Order 13,780 (EO-2), which he called a “watered down, politically correct version” of the initial ban. When that, too, was enjoined by the district and appellate courts, Trump proclaimed, “I wasn’t thrilled, but the lawyers all said, oh, let’s tailor it. …. I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.” EO-2 then expired by its own terms before the Supreme Court could review it. On September 24, 2017, President Trump issued Presidential Proclamation 9645 (EO-3), adding two non-Muslim countries to the list of banned countries, and failed to explain how the eight countries whose citizens it banned were selected. As a group of former national security officials note in their amicus brief, the Administration has taken the unusual step of not offering even a single sworn declaration explaining the motivation or national security reasons underpinning the policy.

The Supreme Court will soon decide whether EO-3 successfully cured the taint of discriminatory animus that clung to EO-1 and EO-2. By all accounts, EO-2 and EO-3 appear to have gone through at least some review by the Department of Homeland Security and the Office of the Legal Adviser to the State Department, and the resulting orders lack the glaring errors of their predecessor. But the obvious flaws of EO-1 and the process that produced it mean that the Court should be highly skeptical of EO-3. The Court will have to wrestle with how much to defer to a President who has created this record of chaos and animus.

What’s more, the Court should approach this case – and, in particular, the decision of how much to defer to the President – with the mounting evidence of the Administration’s broader record of chaotic decision-making processes in mind. Consider the a short list of examples: the ban on transgender military service, which was announced by tweet, with a national security justification that directly contradicted military findings at the time; a sanctuary-city policy that was issued hastily and also underpinned by a national security justification directly contradicted by the Department of Homeland Security’s public safety assessments; and a rescission of the Deferred Action for Childhood Arrivals (DACA) program in the fact of what one federal judge described as the President’s “incendiary” and “extremely volatile” statements regarding Latinos.

To date, courts across the country have been skeptical of the Trump Administration’s attempts to defend policies and executive orders issued without proper legal vetting, using legal justifications that are fatally undermined by credible findings or the President’s own statements to the contrary. Regardless of how the Supreme Court ultimately rules, it should make clear—at oral argument and in its opinion—that this heightened skepticism is warranted. Judges are correctly inclined to defer to the President’s judgments in the national security arena in no small measure because of the understanding that a full array of experts at the National Security Council, the State Department, the Central Intelligence Agency, the Department of Homeland Security, the Department of Justice and other agencies is available, and where needed, involved in providing him with legal advice, intelligence, diplomatic information, and policy development to formulate the best policy. When a President decides to change a policy without involving that extensive apparatus, or invokes the executive apparatus only to create an aura of regularity to decisions the President has already made, the courts simply should not reflexively defer to the President’s judgment. Withholding deference in a case like the travel ban can help ensure the administration abides by the necessary procedures in the future and that courts can then comfortably provide deference where and when it is deserved.

Image: Getty

 

About the Author(s)

W. Neil Eggleston

White House Counsel for President Obama, 2014-2017. He is a Visiting Lecturer in Law at Yale Law School.

Amanda Elbogen

Lawyer in private practice.