Reviewing Arguments on Trump’s Travel Ban 2.0

May 17, 2017
Guest Post

by Pratheepan GulasekaramProfessor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)

For the second time within the span of week, Trump’s immigration ban 2.0 headed to a federal appeals court. On Monday, the Ninth Circuit heard the government’s appeal from district court’s issuance of an injunction in Hawaii v. Trump. The three-judge panel vigorously questioned both Acting Solicitor General Jeffrey Wall and counsel for Hawaii, Neal Katyal. The argument showcased some of the best oral advocacy thus far on the immigration ban executive order (EO), and featured several marquis moments that are sure to garner extended commentary. The range of topics explored by the Ninth Circuit panel were similar to the other cases challenging the EO: The proper level of judicial review; whether any plaintiffs have standing, and if so, what aspects of the EO their standing allows them to contest; whether the district court’s injunction was proper in scope; and, of course, whether and to what extent a court should consider Trump’s campaign and post-election statements in evaluating religious animus.

My goal here is not to comprehensively discuss all important questions covered in the oral argument, rehash the voluminous legal commentary already available about the EO, or to make predictions about the panel opinion. Here, I highlight three moments, among the many, that stood out to me as notable inflection points.  The first exchange concerns the issue of statutory analysis, the second with the limits of religious animus, and the third with the historical legacy of this ruling.

Reconciling INA statutory provisions

First, the panel questioned both sides about how best to reconcile two statutory provisions in the Immigration and Nationality Act (INA). For those following the litigation, 8 U.S.C. 1182(f) and 8 U.S.C. 1152(a) have now become quite familiar. The former, enacted in 1952, was expressly invoked by Trump in the EO because its plain language appears to provide the president with sweeping and unfettered authority to suspend the entry of classes of noncitizens he deems to be detrimental to the national interest. The latter, passed twelve years later, expressly prohibits the denial of immigrant visas (referring to permanent resident visas) on the basis of national origin. Predictably, the government pushed for the broad and unconstrained reading of the president’s authority under 1182(f), while the state of Hawaii argued that 1182(f) must be read in light of 1152(a)’s constraints.

The Government doubled-down on the argument that 1152(a) does not limit the reach of 1182(f). In essence, the argument is that 1152(a) limits the basis for the federal government’s “issuance of an immigrant visa”, but does not impact the executive’s 1182(f) authority to ban “entry.” Thus, in the government’s view, a State Department consular officer could not deny immigrant visas to applicants based on their being a national of one of the barred countries; however, on arrival at a U.S. port of entry with that valid visa, a Department of Homeland Security official could bar their entry based on EO’s invocation 1182(f) authority. Others have ably explained why this result is nonsensical, contrary to rules of statutory construction, and perhaps even irrelevant, given that the language of the EO focuses on visa issuance, and not “entry.” Picking up on the absurdity of such a situation, Judge Hawkins compared the resulting situation to “Tom Hanks at the airport,” referencing a movie about a man stuck in a terminal at JFK Airport.

Katyal’s response to the same question exposed the breathtaking nature of the government’s reading of 1182(f). He rightly noted that an unconstrained interpretation of the president’s authority would effectively allow the president to rewrite entire sections of the INA. Anyone familiar with the INA understands the complexity and rigor of the substantive criteria for admission for nationals of all countries, including the multiple provisions in in 8 U.S.C. 1182(a)(3) for denying admission on the basis of national security or terrorism-related concerns. As per the reading offered by the government, the executive could, on his own determination and for as long as he deems necessary, create his own admission policy in lieu of Congress’, and in complete disregard of the INA’s myriad of long-established statutory limitations and procedures.

Katyal’s broader construction of 1152(a)’s proscription, however, also garnered some pushback from the judges. That code section specifically deals with immigrant visas, but because the EO at issue applies to non-permanent residents, Hawaii’s argument requires extending 1152(a)’s prohibition to nonimmigrant visas as well. To do so, the court would have to interpret 1152(a)’s ban on nationality discrimination as an overarching restriction applicable to all immigration policy.

To shore up this reading, Katyal reminded the panel of the historical context of 1152, pointing to its contemporaneous enactment with the Voting Rights Act of 1965 (and, although he did not mention it in argument, both the 1965 INA Amendments and the Voting Rights Act followed on the heels of the Civil Rights Act of 1964). Indeed, his argument echoed the sentiment of Vice-President Hubert Humphrey, who after the passage of the Civil Rights Act called for removal of “second-class” people from immigration laws, and the statement of President Lyndon Johnson when signing the 1965 INA amendments into law. By the end of the exchange, Katyal may have done enough to satisfy the judges that 1152(a) was “transformational” - that is, it transcended the context of immigrant visas and fundamentally changed federal immigration policy from a racist one based in outright national origin discrimination, to one that reflected evolving equality norms.

The Lingering Effects of Trump’s Statements

Second, the panel asked Katyal a pointed question about the taint of religious animus. As all litigants in these cases have argued, the EO is a thinly veiled (if at all) attempt to discriminate against Muslims, thereby violating the Establishment Clause. The evidence offered to substantiate the claims of religious animus is mostly found outside the four corners of the document (that said, even within the document, the reference to “honor-killings” is a calculated dog-whistle, conjuring notions of Muslim barbarity). Several of Trump’s statements during his candidacy and some made after his election and inauguration plainly reveal an intention to disfavor Islam and discriminate against Muslims. Because these “profound” statements are permanently a part of Trump’s legacy, Judge Paez queried whether Trump was forever barred from implementing an immigration ban like the one at issue.

In what may turn out to be a key factor in the court’s ruling, Katyal clarified that Trump would not forever be barred from issuing an EO similar to the one he issued. Katyal offered two alternatives by which the president could overcome the taint of his prior statements about Muslims: (1) Congress could to enact an amendment to the INA that mirrored the EO; or (2) Trump might disavow his prior statements and clarify his intentions. Katyal amplified the latter suggestion by suggesting the Trump might also point to any changes in factual circumstances that necessitate more restrictive immigration procedures.

Part of the gambit in offering these alternatives is that both are unlikely scenarios. Congress has been polarized for some time, and changes to immigration law have been one of the areas of highest contention. More fundamentally, many federal lawmakers simply do not support an immigration ban like the one in the EO, and believe it to violate fundamental American values. Indeed, according to foundational immigration law cases, Congress possesses broad authority to exclude on many bases, and, in the past, has used that power to enact blatantly racist exclusionary laws. Yet, in recent decades, with our evolving societal progress towards equality and the instantiation of nondiscrimination norms in federal lawmaking, politics has, for the most part, curbed Congress’ regression to those explicitly discriminatory policies. Indeed, it is worth remembering that Congress recently considered evidence about the countries selected in the EO, but chose not to implement any flat bans. Instead, it called for the application of the INA’s pre-existing admissions criteria and vetting standards, on an individualized basis, for any travelers who had recently been in those countries.

Trump’s bluster and personality make the second alternative a long shot as well. Quite simply, Trump has thus far resisted admitting to any mistakes, and has shown no inclination to revoke or disavow his statements about Muslims. Indeed, in defiance of the district court’s injunction in this case, Trump was adamant that he should “go all the way” and revert to the broader, first version of the EO. He has attacked every setback to his agenda thus far as the incompetent work of rogue courts. Despite his otherwise consistently unpredictable behavior, the notion that he would admit that he was wrong to have targeted Islam or singled-out Muslims, seems predictably unlikely.

It is worth noting that even these alternatives would not necessarily address other potential constitutional and statutory challenges, like the due process claim in this case. And, if somehow either alternative came to pass, Katyal’s concession here would certainly provide fodder for the government’s defense of those policies against establishment clause challenges in the future. However, in the immediate case, Katyal’s strategic concession may have provided the judges with the concrete alternatives they needed to feel comfortable finding religious animus under these facts. The theoretical (albeit remote) possibility of achieving similar policy goals allows the panel to consider the overwhelming evidence of religious animus in this case, without feeling that they have permanently constrained Trump, or any future president, from responding to actual national security threats.

The Legacy of the Opinion

Finally, both advocates closed their argument in similar fashion. Both agreed that the court’s ruling would transcend the case and set historical precedent. They disagreed, however, on what that legacy should be.

Katyal closed by positioning federal courts as the hero of the story, saving the republic and its constitutional values from an ill-intentioned chief executive. Continuing the injunction, he claimed, would change absolutely nothing about the constitution’s allocation of executive and judicial powers. Indeed, the outlandishness of the president’s religious animus both necessitated judicial intervention and ensured that the ruling would not unduly hamper future executive action. In contrast, Wall warned of the dangers of judicial meddling in areas beyond its competence. Accusing the plaintiffs of forcing a policy disagreement into the judicial arena, he framed the court’s intervention as overreach into the political sphere. By continuing the injunction, the court would be immodestly interjecting itself into the center of contentious national security debates for the foreseeable future.

Given the grave national importance of the case, and the possibility of several lower court opinions, the ultimate resolution of Trump’s second attempt at a Muslim ban may only come with the next term of the Supreme Court. In the meantime, however, all eyes are on the judges of the lower federal courts as they wrestle with these questions under intense public scrutiny. Because of this context, it would appear that Katyal got the better of the closing arguments. Before leaving the podium he reminded the court that it was in the same courthouse, several decades ago, that a federal court convicted and detained a U.S. citizen of Japanese descent, by deferring to the dubious claims of wartime necessity advanced by the executive branch. That court’s abdication of meaningful judicial review resulted in yet another racist and shameful episode in American history. The question left unasked, but clearly implied, was whether this Ninth Circuit panel was similarly willing to risk being on the wrong side of history.