Revoking California’s Clean Air Act Waiver Is Bad Policy and Legally Indefensible

It’s not news that the Trump administration has been planning, via its so-called SAFE Rule, to freeze Obama-era fuel economy standards, roll back tailpipe greenhouse gas (GHG) emissions standards, and revoke California’s Clean Air Act authority to set its own emissions standards. But in recent weeks, as several major automakers have signed on to a deal with California to recognize the state’s authority to regulate and to continue reducing tailpipe GHG emissions, the Trump administration has ramped up its attacks. The assault is now culminating in an announcement that the administration will revoke California’s waiver, even before it finalizes its rollback of the fuel economy and tailpipe emissions standards.

The attack on the standards, and on California’s authority, is all the more confounding because even the auto industry has called for the federal government to come to the table with California. In a June hearing before the House of Representatives Energy & Commerce Committee, auto industry representatives testified that the rollback would undercut already-dedicated industry investment in clean technologies and cede American leadership in that space. Even Republican legislators echoed the industry’s calls for the administration to rethink its plans, suggesting that the ensuing regulatory uncertainty would be bad for all.

Instead, the administration is barreling forward into unprecedented territory—a waiver has never been revoked in the 50-year history of the Clean Air Act—where it will find itself on shaky footing from both a policy and a legal perspective.

Why a waiver revocation is bad policy

There are a number of reasons why a waiver revocation is an unwise move from a policy perspective: (1) this revocation-only action throws the auto industry into regulatory uncertainty that creates economic risks for businesses; (2) revoking California’s waiver has serious consequences for air quality in California and other states, not to mention setting back the fight against climate change; and (3) a waiver revocation achieves none of the stated goals of the administration’s rollback plan.

Revocation just begins the litigation battle between California (and, likely, other groups and states) and the administration. That litigation could take months, or even years, to resolve—assuming there’s not a change of administration in the middle that moots the entire dispute. Further, the bifurcation of the waiver revocation from the rest of the rollback rule raises the possibility of an even longer timeframe to reach full resolution, as well as potentially inconsistent determinations in two separate litigations.

While litigation is ongoing, automakers will not know which set of standards will ultimately apply to them: California’s, the Obama-era federal standards, or the Trump rollback. Ironically, even though the administration insists that it will be creating “one national standard” by revoking California’s waiver, it will actually be doing the opposite. Currently, California’s standards are harmonized with the federal government’s standards, so there actually is only one national standard that automakers can meet. If the waiver is revoked, that harmonization will disappear, and automakers could ultimately be left to comply with different California and federal standards depending on the outcome of the litigation.

In the meantime, the market continues to progress: consumers are interested in more fuel-efficient and greener cars, and other countries are requiring improved fuel economy. In other words, automakers are being pushed by economic forces to make more efficient (and lower-emitting) cars, regardless of what the federal government does. In this environment, many automakers see the wisdom of trying to create some clarity for themselves even as the administration’s actions muddy the waters. Hence the framework agreement between California and a handful of major automakers: better to agree to a set of standards regardless of litigation outcomes than to find yourself holding the compliance bag months or years down the road. Even automakers who haven’t signed on to the agreement continue to call for talks between California and the administration for the same reason. The ensuing battle over California’s waiver authority is simply bad for business.

It is also bad for public health. A waiver revocation, if upheld, would upset not only California’s authority to enforce its tailpipe GHG standards, but would also interfere with enforcement of its zero-emission vehicle (ZEV) mandate. The ZEV program was originally adopted not to address climate change, but to combat smog pollution, a purpose it still serves. California suffers from some of the worst smog pollution in the nation; for example, the South Coast Air Basin exceeded federal ozone standards for over one-third of the year in 2017. California isn’t the only state that uses these regulations to reduce air pollution, either. Even the administration’s own analysis recognizes that other states rely on California’s rules to meet federal ambient air quality standards—but if California loses its authority to enforce its standards, so will those states. That’s why the attorneys general of those states and the mayors of over fifty cities within them have stressed that “these standards are both necessary and feasible” and are “particularly appropriate given the serious public health impacts of air pollution in our cities and states…”

And, of course, a waiver revocation, if upheld, would set California and other states back in their fight against climate change. Transportation sector emissions account for nearly 40 percent of California’s GHG emissions. If California loses this regulatory tool, the challenge of meeting its aggressive GHG reduction goals by 2030 and 2045 will become even tougher. California stands to suffer disproportionate effects from climate change as a result of its unique geography and climate, including heat waves, worsening ozone pollution, harm to agricultural production, wildfires, and a rising sea level. And the administration’s action comes at a time when respected climate scientists have suggested that we need to redouble, not relax, our efforts to address climate change.

Finally, an action to revoke the waiver is antithetical to the administration’s own stated purposes for the SAFE Rule: arguments that the Obama-era standards created vehicle safety concerns for consumers and that the compliance timeframes were not technologically feasible. Those arguments themselves have always been weak; consumer purchasing pattern data shows that the safety gains the administration touted are specious, and automakers are well on track to meeting the Obama-era standards—in fact, some cars on the market today are already years ahead of the curve. But even if the administration’s arguments held up, finalizing a rule that leaves Obama-era standards in place while revoking California’s waiver does nothing to address either of those purported concerns.

Why a waiver revocation stands on shaky legal footing

The administration has argued that: (1) it has “inherent authority” under the Clean Air Act to revoke the waiver because it does not meet the standards of Clean Air Act section 209 and (2) California’s standards are preempted by the federal Energy Policy and Conservation Act (EPCA), which authorizes the federal government to set fuel economy standards. Neither argument is convincing.

In reality, the Clean Air Act does not contain any waiver revocation authority. Section 209 spells out the process for granting a waiver and explains that EPA must grant a waiver unless one of three unusual circumstances exists: (1) California’s finding that its standards are at least as stringent as the federal government’s was arbitrary and capricious, (2) California does not need the standards to meet compelling and extraordinary conditions; or (3) the standards and accompanying enforcement procedures are inconsistent with Clean Air Act section 202. But the act is clear that these are considerations that come into play before, not after, a waiver has been granted. There is no suggestion that Congress intended to create revocation authority, and no such authority has ever been recognized by a court, or otherwise. Even if the section 209 factors did apply in the context of a waiver revocation, the California standards satisfy all of section 209’s requirements: they are at least as stringent as the federal government’s standards, they are necessary to meet compelling and extraordinary conditions that California faces both with respect to air pollution like smog and climate change, and they are consistent with section 202 of the Clean Air Act.

Nor does EPCA preempt the standards. The administration’s argument, put simply, is that because reductions in tailpipe GHG emissions can be achieved by improving fuel economy, California’s emissions standards are preempted by EPCA’s regulation of fuel economy. But multiple federal courts have determined that EPCA’s regulation of fuel economy does not preclude regulation of vehicular GHG emissions. In Massachusetts v. EPA, the Supreme Court found EPCA did not displace EPA’s authority to regulate GHG emissions; based on that finding, federal courts in Vermont and California have concluded that EPCA does not preempt state GHG standards, upholding California’s tailpipe standards and Vermont’s adoption of them.

In sum, revoking the waiver throws regulated industry into costly uncertainty, could result in serious harm to public health, and does not support the administration’s own stated rationale for a standards rollback. It’s just not smart policy. It’s also unprecedented, unauthorized by the Clean Air Act, and unsupported by prior agency and court decisions.

A Progressive Vision of the Constitution

This was originally published on February 27, 2019. 

Decisions in important Supreme Court cases have always been a function of the values of the justices on the bench. Conservatives realize this as much as liberals, which is why they fought so hard to keep Merrick Garland off the Court and confirm Neil Gorsuch and Brett Kavanaugh. The difference, though, is that conservatives pretend they are just following a neutral judicial methodology— “originalism.”

In their telling, conservatives are just following the Constitution. They are faithfully executing the will of our Founding Fathers whereas liberals are guilty of “interpreting” the Constitution to impose their idealistic vision on society. But liberals know that, while constitutional decisions are rooted in the document’s text, they are also a product of our nation’s history since its drafting and the needs of modern society. Conservatives know this obvious truth as well; they just cover it up with a “bumper sticker” theory of interpretation that makes for a great sound bite, but which is, in the end, meaningless.

The Constitution was intentionally written in broad, open-ended language that rarely provides sufficient guidance for many of the issues before the Supreme Court. The meaning of phrases like “cruel and unusual punishment” or “due process” or “equal protection” cannot be determined by the words of the text alone or the intent of its drafters, who wrote long ago for a vastly different world.

Moreover, the desire for value-neutral judging in constitutional cases is an impossible quest because the need to balance competing interests is inescapable and a justice’s own ideology and life experiences inevitably determine how he or she strikes that balance.

In determining whether state laws that prohibited same-sex marriage denied equal protection, all of the justices faced the question of whether forbidding marriage equality served a “legitimate” government purpose. In deciding whether affirmative action programs deny equal protection, the Court must assess whether diversity in the classroom is a “compelling” government interest. But what is “legitimate” or “compelling” is very much a reflection of the justices’ values.

It is simply wrong to think that Supreme Court justices—liberal or conservative—can decide constitutional cases without making value judgments. Such an assertion is a smokescreen to make Americans think conservatives are basing their decisions on the “true” meaning of the Constitution when actually their rulings are a product of their own conservative views.

Read also: Our Liberal Constitution, by Adam Winkler

In Shelby County v. Holder (2013), the Court declared unconstitutional a key provision of the Voting Rights Act of 1965 that required state governments with a history of discrimination to get prior approval from the Attorney General for any major change in their election systems. Chief Justice John Roberts, writing for the majority in a 5-4 decision, said that the provision, which had been the law for over a half-century, violated the requirement that Congress treat all states alike. But nothing in the Constitution says Congress should treat all the states alike.

The progressive vision, however, does more than simply show the intellectual bankruptcy of originalism; it shows that constitutional law is about applying the values of the Constitution to current problems.

These values are clearly stated in the first words in the document’s Preamble. It declares that the Constitution is written to create a democratic government, ensure an effective government, establish justice, and secure liberty. Added to these goals should be achieving equality, something omitted from the original Constitution which protected slavery and envisioned no civil rights for women or racial minorities.

The task for progressives is to give context to these values and show how the Constitution should be interpreted to achieve them. Today, the American Constitution Society and other progressive legal groups are exploring ways to apply the values inherent in the Constitution to modern problems the Founding Fathers could never have imagined let alone accounted for when they drafted the original document.

Only a progressive vision of constitutional law can address serious flaws in American democracy, such as the racial discrimination that undermines equality of voting in many states. Such a vision is needed to truly champion criminal justice reform, including finally ending the death penalty, and to fiercely defend women’s reproductive rights. In the longer term, such a vision will be needed to make the case for interpreting the Constitution as giving all Americans the right to food, shelter, medical care, and education. But dealing with these complex issues requires that the law responds to government actions that can have a discriminatory impact, actions that may nonetheless have roots in clearly outdated Constitutional language.

All of this may seem elusive today with five conservative justices. But one day, there will be a more progressive Court, and liberals should proudly articulate a vision about the meaning and values behind the words of the Constitution for when that day comes.

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Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law.  Author of We the People:  A Progressive Reading of the Constitution for the 21st Century (2018).

Trump’s Judge Whisperer Promised to Take Our Laws Back to the 1930s

This blog was originally published in Slate on May 27, 2019.

One week before the 1980 presidential election, toward the end of his lone debate against Jimmy Carter, Ronald Reagan stared into the camera and implored Americans to ask themselves, “Are you better off than you were four years ago?” The question is widely believed to have ended Carter’s presidency.

In the spring, the Washington Post published a profile of Federalist Society Executive Vice President Leonard Leo, focusing in part on a speech he gave to the Council for National Policy in which he warmly predicted the Supreme Court would soon return to the pre–New Deal era of “limited, constitutional government.” Leo believes, in other words, that the court’s view of the Constitution was better off 85 years ago than it is today.

“I think we stand at the threshold of an exciting moment in our republic,” Leo told the council at a closed-door meeting in February, audio of which was obtained by the Post. “This is really, I think, at least in recent memory, a newfound embrace of limited constitutional government in our country. I don’t think this has really happened since probably before the New Deal.”

The average American doesn’t know who Leo is, but as the Post piece makes clear, he‘s one of the most influential lawyers in the country. A longtime leader within the Federalist Society, Leo has had Donald Trump’s ear on judicial appointments and has been the main curator of the president’s list of Supreme Court candidates. Two of Leo’s personal picks, Brett Kavanaugh and Neil Gorsuch, have been elevated to the highest court in the country since Trump’s election. So when Leonard Leo says he wants to return to a pre–New Deal Constitution, you should listen. And you should be alarmed.

As Leo knows, constitutional law was very different in the 1930s from what it is today. And in a word, it sucked.

In the 1930s, the courts were fully complicit in maintaining the country as a thoroughgoing ethnocracy, governed openly for the benefit of white men. Public schools in 21 states were racially segregated by law. “Separate but equal” schools had been affirmed by the Supreme Court as late as 1927, in a unanimous decision allowing Mississippi to kick a Chinese American girl out of her local “white” school for being a member of the “yellow” race. The outlawing of segregation is settled law in our country, and nobody would dare dream of returning to those antiquated judicial interpretations, you might say? Several of Trump’s judicial nominees have conspicuously, outrageously, refused to say whether they thought Brown v. Board of Education, which ended legal school segregation in 1954, was correctly decided.

Leo believes that the court’s view of the Constitution was better off 85 years ago than it is today.

In the 1930s, through a combination of discriminatory literacy tests, poll taxes, “good character” requirements, and straight-up violence, less than 1 percent of black people in the Deep South—where they represented more than a third of the population—were registered to vote. The Supreme Court had blessed these intimidation practices for decades, ever since a 1903 decision in which the court said it couldn’t do anything about Alabama’s self-described effort “to establish white supremacy in this state” by refusing to register black voters. Discriminatory voting practices of this sort weren’t banned until the 1965 Voting Rights Act, the most significant provision of which was gutted six years ago in an opinion by Chief Justice John Roberts (whom Leo also helped elevate to the court).

In the 1930s, women had no constitutional right to equality. They could legally be kept off juries, given different work hours, paid less money, and imprisoned for using birth control. It would be another four decades before the Supreme Court struck down even a single law for discriminating against women. Kavanaugh and Gorsuch—again, both products of Leo’s vetting—recently dissented from the court’s temporary blocking of a Louisiana law that would have left the entire state with just a single doctor able to perform abortions.

In the first half of the 20th century, the police could beat confessions out of arrestees. Poor defendants had no right to a lawyer. Evidence could be illegally seized and used in prosecutions. In 1944, for example, South Carolina executed a 14-year-old black boy named George Stinney for the murders of two white girls. He was questioned alone, without his parents or a lawyer present, and convicted by an all-white jury after a two-hour trial and 10 minutes of deliberation. He wasn’t allowed to appeal. He had to sit on books to fit into the headpiece of the electric chair. Only in 2014, 70 years too late, did a circuit court judge vacate the 14-year-old Stinney’s murder conviction. The Stinney case tells you all you need to know about criminal justice in the age Leo wants to bring back.

The 1930s was of course the decade of the Great Depression, when unemployment hit 25 percent and most Americans lived in poverty. The post–New Deal court decisions Leo wishes to repudiate are the ones that gave the government the power to enact minimum wage laws, to create unemployment insurance and Social Security, to provide health insurance to the aged and destitute, and to give workers collective bargaining rights. In the 1930s, those too old to work and too poor not to could often expect a quick but painful death. This is the human toll of “limited government.”

If we’re looking for Reagan’s shining city upon a hill, we won’t find it in America’s now-distant past. Not most of us, anyway. And if it’s what Leo is promising us, we can only hope it’s not in America’s future.

Key Questions for Former Trump Campaign Manager Corey Lewandowski

Former Trump campaign manager Corey Lewandowski is scheduled to appear before the House Judiciary Committee September 17 to testify on the Trump campaign’s alleged interactions with Russian individuals during the 2016 campaign. Below is a joint post by Zinelle October, Interim President of the American Constitution Society, and Noah Bookbinder, Executive Director of Citizens for Responsibility and Ethics in Washington, exploring some of the issues likely to arise during Mr. Lewandowski’s appearance and some key questions that should be asked of him.

When former Trump campaign manager Corey Lewandowski appears before the House Judiciary Committee this week, much attention will appropriately focus on President Trump’s disturbing requests in June and July 2017 to Lewandowski. Then a private citizen, Lewandowski was instructed by Trump to tell Attorney General Sessions to limit the Mueller investigation and to fire Sessions if he did not meet with him. As Trump’s former campaign manager, however, Lewandowski is in a position to illuminate additional key unanswered questions: why did the Trump campaign dispute that Russian operatives were hacking Democratic National Committee computer systems, and why didn’t Trump campaign leaders report to U.S. authorities about then-ongoing Russian outreach to them?

Lewandowski left the campaign on June 20, 2016. In the week before his departure, the media reported that the Russian government had broken into the DNC computer system and that US officials believed Russian spies were also targeting the Clinton and Trump campaigns. Immediately, the Trump campaign responded to this account with a statement asserting the Russians had not attacked the DNC, but rather the DNC had hacked itself.

The Trump campaign’s denial of the Russian attack is mystifying for several reasons. First, to this day, after a rigorous two-year investigation by Special Counsel Robert Mueller, there remains not one scintilla of public evidence supporting the campaign’s claims. To the contrary, as detailed in Mueller’s final report and court filings between March and October 2016, Russian agencies not only intruded into the DNC computer system and dumped extracted information, they also hacked and released emails and documents of individuals associated with the Clinton campaign and the Democratic Congressional Campaign Committee.

Second, the media account of Russian intrusion occurred at the same time that Russian nationals were reaching out to the Trump campaign on multiple fronts. These contacts included notification in late April 2016 to campaign foreign policy advisor George Papadopoulos that the Russians had “dirt” on Hillary Clinton in the form of thousands of emails, and a June 9, 2016, in-person meeting between Russian nationals and Donald Trump, Jr., Jared Kushner, and Paul Manafort precipitated by a promise from the Russians of “official documents and information that would incriminate Hillary.” Given the nature and timing of these Russian contacts, the media report that Russia was targeting the DNC and both presidential campaigns should have raised alarm, not skepticism, on the part of the Trump campaign.

As a former top campaign official, Lewandowski should be able to shed light on the basis for the June 2016 Trump campaign statement challenging the public reports on Russian hacking. As part of this, he also should address what role Trump himself played in this response. Lewandowski himself has repeatedly underscored that Trump “loves to have all the information brought to him” and was the “final decision maker on everything that takes place.” Presumably, a hands-on decision-maker would have been in the loop on matters concerning the Russian interference allegations that were grabbing national headlines at the time.

Lewandowski also should address the important related issue of how he as campaign manager, his campaign colleagues, and candidate Trump considered and dealt with the national security risks posed by its contacts with a hostile foreign power. The Mueller report makes clear that Lewandowski was informed of multiple efforts by Russian nationals to engage the campaign in the spring of 2016, including:

  • Papadopoulos, between April and June 2016, repeatedly emailed Lewandowski -- along with Trump campaign advisor and current top White House aide Stephen Miller, and campaign co-chair Sam Clovis -- about contacts with Russian representatives seeking meetings with Trump and his team;
  • Even after the June 14, 2016 news accounts of Russian interference, Papadopoulos emailed Lewandowski that the Russian ministry of foreign affairs contacted him to ask whether, if Trump was unable to travel to Russia, a campaign representative could meet there;
  • In June 2016 Lewandowski responded to a request from Trump campaign advisor Carter Page for approval of an invitation from the New Economic School in Moscow for Page to speak there at a July 2016 event; and
  • Trump attorney Michael Cohen says he talked with Lewandowski during the campaign about coordinating on a potential Trump trip to Moscow, and Trump’s assistant notified Lewandowski in late April 2016 about an invitation that Trump did not ultimately accept to attend a forum that summer in St. Petersburg, Russia.

The public deserves full accountability regarding what steps Lewandowski and his Trump campaign colleagues took to inform US authorities about Russian outreach to the campaign, both before and after the press reports on Russian interference in June 2016, and any instructions he, President Trump, or any Trump campaign colleagues issued to campaign associates regarding how to respond to or report Russian contacts.

U.S. intelligence agencies continue to report that election interference by Russia and other hostile powers remains a threat to the United States, a reality underscored by recent news that the CIA in 2017 had to extract an endangered source from Moscow who had been central to understanding Russian government involvement in the 2016 attacks. As Congress, the public, and 2020 campaign officials seek to implement policies and practices that most effectively protect against future attacks, Lewandowski’s testimony should serve as a reminder that denial is a strategy that none of us should be considering.

Court Recognizes Reputational Harm to Muslims on Terrorist Watchlist

For nearly 20 years, Muslims in the United States have borne the brunt of aggressive and over-reaching national security practices.  Among the most pervasive are security screenings at airports and ports of entry.  Muslims’ experiences of being frisked, interrogated about their religious beliefs and practices, and having their electronics confiscated has become so frequent that it is referred to as “Flying While Muslim.”   

Underpinning such religious profiling is a massive terrorist watchlist comprising more than 1.1 million names, the majority of whom are Muslim and over 4,600 are U.S. citizens and green cardholders. Multiple federal agencies can nominate persons to the Terrorist Screening Center (TSC), which is responsible for vetting the watchlists.  Ninety-nine percent of all nominations are accepted, triggering serious civil liberties concerns with the lack of meaningful review. 

After years of litigation, and futile administrative complaints through the DHS Traveler Redress Inquiry Program (TRIP), the Muslim plaintiffs in Elhady v. Kable finally obtained legal relief.  On September 4, 2019, the federal district court in Virginia ruled that  the watchlisting process is unconstitutional. The absence of a pre- or post-deprivation hearing coupled with a sham administrative grievance process persuaded Judge Trenga to grant summary judgment for plaintiffs on their procedural due process claim. 

Most notable was the court’s recognition of the high reputational costs suffered by the Muslim plaintiffs, not only during travel but in other forums.  This finding is a welcome humanization of Muslims, whose dignitary and civil rights have been systematically subordinated to abstract national security interests. Whether challenging the National Security Entry Exit Registration System (NSEERS), immigration roundups of Arabs and Muslims after major terrorist attacks, or punitive detention conditions for terrorism suspects, Muslims have consistently been rebuked by courts deferential to the executive branch. 

In contrast, the court in Elhady found the plaintiffs had a liberty interest, under the Fifth Amendment Due Process Clause, in being free from false governmental stigmatization as a terrorist.  Citing the 1976 Supreme Court case Paul v. Davis, the court stated “[a] person has certain rights with respect to governmental defamation that alters or extinguishes a right or status previously recognized by state law, known as a ‘stigma-plus.’” To show stigma-plus, plaintiffs must show both a stigmatic statement and a state action that alters or adversely affects plaintiffs’ interests.  

The 23 Muslim plaintiffs filled the record with accounts of humiliating and abusive treatment by federal agents in the Customs and Border Patrol and Transportation Security Administration.  The lead plaintiff Anas Elhady was held for nearly six hours in “a small, freezing cold holding cell with bright lights,” causing him to be hospitalized. Another plaintiff, Ahmed Al Halabi, was “surrounded by armed CBP officers, handcuffed in front of his children and detained in a freezing cold holding cell for approximately two to three hours” when crossing the Canadian border by car. At least six of the plaintiffs were held at gunpoint, while their friends and families watched in horror.  And many were asked intrusive questions about what mosques they attended, what sect of Islam they belong to, and whether they study Islam full time. 

After repeated unsuccessful attempts to remove their names from the terrorist watchlist through the DHS TRIP, some plaintiffs stopped traveling outside the United States or on airplanes altogether. 

The harmful consequences of being on the watchlist extend beyond travel. The watchlist is widely disseminated to more than 18,000 state, local, county, city, university, tribal, and federal law enforcement agencies and 533 private entities through the National Crime Information System (NCIC).  As a result, people wrongly on the watchlist lose jobs. Government employers reference the watchlist for screening of employees and contractors.  So too do private employers with transportation and infrastructure functions.   

People wrongfully placed on the watch list also cannot own firearms in some states, are denied certain licenses, and have their bank accounts erroneously closed by entities that review the NCIC in their decision-making process. Citizenship and green card applications are indefinitely delayed due to an opaque FBI name check process that relies in part on the terrorist watch list.  Additionally, if someone on the watch list is subjected to a minor traffic stop, the police proceed as if they are dealing with a suspected terrorist.   

With countless Muslim names on the watchlist, pervasive false stereotypes of Muslims as violent and disloyal are corroborated to the millions of people reviewing the watchlist.  

Despite the broad adverse consequences, the standard for being added to the watchlist is vague and low.  The TSC accepts nominations to the watchlist for “an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities.”  

There is no requirement that a person engaged in criminal activity, committed a crime, or even will commit a crime in the future in order to be placed on the watchlist.  Hence the decision is based largely on subjective judgments. 

Even more problematic is the TSC’s consideration of an individual’s race, beliefs, and activities protected by the First Amendment, travel history, and personal associations in evaluating a nomination.  This likely explains the over-representation of Muslims on the watchlist, including at least 4600 U.S. persons.  For these reasons, the court found DHS TRIP does not satisfy the Due Process Clause; and a post-deprivation hearing is warranted.    

A generation of Americans has come of age in a post-9/11 era where suspecting Muslims of terrorism is the norm.  Indeed, over 40 percent of Americans believe Islam is more likely to encourage violence than other religions.    Each time someone witnesses a government agent stop, detain, and search a Muslim at the border and airport, Islamophobic stereotypes are validated.   

Thus far, the courts have offered little relief for American Muslims’ pursuit of their legal and dignitary rights.  Only time will tell if the Elhady case signifies a reversal of this troubling trend or merely an anomaly. 

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Sahar Aziz is Professor of Law and Chancellor’s Social Justice Scholar at Rutgers Law School.  Professor Aziz is the founding director of The Center for Security, Race and Rights and the author of the forthcoming book The Racial Muslim, under contract with Harvard Press.