The very first thing that Solicitor General Noel Francisco told the court at oral argument in Hawaii v. Trump was: “After a worldwide multi-agency review, the President’s acting Homeland Security Secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals.” Francisco returned to the worldwide review time and again, making it the linchpin in the government’s argument that the President’s Proclamation banning entry of nationals from predominantly Muslim countries was based on a religiously neutral national-security assessment by public servants and not the “shutdown of Muslims entering the United States” that the president had called for during the campaign. According to the Solicitor General, if the president’s cabinet had come to him and said, “‘Mr. President, there is honestly a national security risk and you have to act’, I think that the President would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”
But the government never presented any evidence about what the president’s cabinet found or recommended—leaving the court with nothing but the government’s vague assertion that the agency supported the president’s ban. If the court were to rule in favor of the government without requiring it to offer proof, it would run the risk of repeating its mistake in the Japanese internment cases, the most controversial modern decisions about the use of federal power to discriminate against one group of people for the ostensible purpose of protecting national security. In those cases, the government relied on a military report to support its claims about the national-security threat posed by Japanese Americans, but that report turned out to be so riddled with misrepresentations that decades later the United States government confessed error for having presented it to the court.
In the proclamation, the government represents that it performed an extensive analysis of the identity systems, information practices, and security situation of every country in the world to determine which ones should be subject to entry restrictions. If that’s true, the government’s findings should be reflected in the two reports that DHS made to the president before he issued the proclamation. Those reports have never been made public or produced in court. But according to an index produced in Freedom of Information Act litigation brought by the Brennan Center (for whom this author is one of the counsel), the worldwide review’s findings in their entirety comprise a three-page attachment to DHS’s first report to the president and a one-page attachment to the agency’s final report—documents so short that they could hardly even name all the countries of the world, much less set forth thorough assessments of whether they pose national security risks befitting a bar on entry by their nationals to the United States.
Even more troubling: a close reading of the limited public record about the supposed worldwide review suggests that the president imposed restrictions that may be materially different from what the then-Acting Secretary of Homeland Security Eliane Duke recommended—indeed, that the acting secretary may have specifically recommended against measures that the president took.
The ban comprises two different types of restrictions on entry visas. The first are restrictions on non-immigrant visas to travel to the United States for a limited period for reasons such as education, business, or pleasure. The second type are restrictions on immigrant visas to become a permanent legal resident or citizen. The non-immigrant restrictions (which vary among the affected countries) are characterized in the proclamation as a “tailored approach” adopted “in accordance withthe recommendations of the Secretary of Homeland Security.” (Emphasis mine.)
The restrictions on immigrant visas, however, are not tailored—at least not for the Muslim-majority countries that are banned. The poclamation imposes an absolute ban on immigrant visas for all those countries even while acknowledging that “immigrants generally receive more extensive vetting than nonimmigrants.” (Emphasis mine.) And unlike the travel restrictions, the immigrant-visa restrictions are not described in the proclamation as having been made “in accordance with the recommendations of the Secretary of Homeland Security.” Further supporting the inference that DHS didn’t recommend immigration restrictions but that the president imposed them anyway, an affidavit submitted by a DHS official in the Freedom of Information Act litigation represents that the agency’s second report to the president “summarized DHS’s recommendations concerning which countries’ nationals should be subject to travel restrictions or other lawful actions.” (Emphasis mine.) Nowhere does the official say anything about recommendations by the agency concerning immigration restrictions.
In other words, DHS may have recommended restrictions on non-immigrant travel from specific countries, but it appears not to have done so for immigration—which just makes sense, because federal law prohibits it from doing so. 8 U.S.C. § 1152(a)(1)(A) provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of . . . nationality.” (No such express prohibition exists for non-immigrant travel visas.) It is quite possible that DHS felt legally barred from recommending country-specific restrictions for immigrant visas—the agency may have even recommended against them for this precise reason—but the president was undeterred.
If the president went beyond DHS’s recommendations or even directly contradicted them, then the government’s central argument for upholding the ban—that the president was acting on the recommendation of unbiased agency officials performing expert assessments—cannot be credited. The government would surely argue that the president can elect to impose different restrictions than his cabinet secretary recommended. But it can’t simultaneously rest its legal case on having relied on her. Hence, the courts should be right back to where they were with the two previous versions of the ban, which were imposed by the president on his own initiative before any review was done, with the best evidence of his purpose being the anti-Muslim statements that he made when he consistently called for the ban during the campaign and continued to do during his presidency.
To be sure, the government might object that the inference drawn here is wrong—that DHS did in fact recommend restrictions on immigration. But courts can’t assume that’s so—especially with the administration’s track record of mischaracterizing agency work product in its public pronouncements. In all events, courts don’t have to make assumptions about whether the president followed agency recommendations or defied them; they can just find out. After all, this is litigation, which contemplates discovery and presentation of relevant facts, not mere assertion of them. In these early, preliminary-injunction proceedings, the challengers to the ban haven’t yet been afforded discovery about the worldwide review, to test the validity of the government’s primary justification for the ban. That has to happen, regardless of whether the Court affirms the preliminary injunction—as we contend it should on the present record—or vacates it. The Hawaii case and other challenges to the ban will return to district courts for discovery about whether the DHS’s worldwide review supports having the ban imposed by the President, as well as whether the waiver process that the government touted as putting the ban on sound legal footing is genuine. Those courts will have to work through claims by the government that it can’t produce the reports because of national-security classifications or other privileges, and assess the consequence for the government’s case if it can’t present proof supporting the assertions it is making to defend the ban.
In adjudicating the ban, the Supreme Court is grappling with some of the loftiest principles of our constitutional structure: equal rights; religious freedom; the authority of the president to act in the interests of national security. But these fundamental propositions get applied fairly in court proceedings only when the arguments made about them are grounded in a factual record known to all parties and to the courts. Right now, the government’s main rationale for upholding the ban rests on mere assertion, not evidence—and there is reason to doubt whether the assertions and evidence line up.
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