Saturday, February 11, 2017

Trump Could, But Probably Won't, Clean Up the Immigration Mess He Created

by Michael Dorf

As I write, the White House has sent conflicting signals about how it intends to respond to Thursday night's unanimous Ninth Circuit panel ruling leaving in place Judge Robart's stay of the already infamous Executive Order 13769. It initially appeared that the Trump administration would not seek immediate review in the Supreme Court, but within hours Sean Spicer announced that all options--including Supreme Court review--remained on the table, even as the president himself indicated that he might simply sign a new executive order. What are the pros and cons of the various approaches?

(1) The government could seek en banc review in the Ninth Circuit. Even if it does not push the point, because one Ninth Circuit judge has made sua sponte call for en banc review, the parties have until Thursday to file briefs on whether the court should take the matter up en banc. En banc review in the Ninth Circuit looks like a losing proposition for the federal government. Readers unfamiliar with the Ninth Circuit's rules may think that en banc means "full court"--which it does for most circuits, but because of its size, the Ninth Circuit hears en banc cases in panels of eleven. The Trump administration could get lucky and draw a conservative majority on the en banc panel, but given the overall composition of the Ninth Circuit, that seems unlikely. If the administration wants to have Judge Robart's order dissolved quickly, it should try to bypass en banc review in the Ninth Circuit. That would involve the next option.

(2) The odds look a little better for the Trump administration in the Supreme Court. The administration could seek an emergency stay of the district court stay from the Supreme Court, via a petition to Justice Kennedy (the Circuit Justice for the Ninth Circuit), which he would very likely refer to the full Court. The Court would then likely call for a quick response and probably either deny or grant the motion for stay without oral argument, although it could quickly schedule an oral argument. In the current eight-justice Court, a 4-4 tie would leave the Ninth Circuit ruling and thus the district court stay in place. It is hard to see any of the Democratic appointees voting to reverse the Ninth Circuit and it is relatively easy to imagine Justice Kennedy joining them to reject the government's broadest assertions of power, given his authorship of Boumedienne v. Bush and his statement in his concurrence in Kerry v. Din that a credible allegation of bad faith would enable a court to look behind a government's facial assertion of a national security interest in excluding an alien outside the United States.

The Trump administration's best hope in the SCOTUS is for some sort of compromise holding, but the issues on which the administration's arguments are strongest are problematic. Perhaps the Court could rule that Washington and Minnesota lack standing for at least some of their claims, but even if it did, that would only delay the day of reckoning. The DOJ lawyers have conceded that relatives of persons currently excluded from the U.S. have standing. So do holders of visas who are currently in the U.S. and are chilled from traveling outside the U.S. by the Executive Order. People in these categories have already sued in other courts and it would be child's play for the States of Washington and Minnesota to find a few such people in their respective states to be joined as additional plaintiffs pursuant to Federal Rule of Civil Procedure 20. A SCOTUS order partially dissolving the stay on standing grounds would be met with an almost immediate joinder motion back in Judge Robart's court, whereupon the stay would be reissued with the standing problem cured.

The other way in which the district court order is somewhat vulnerable is in its grant of nationwide relief. The Ninth Circuit concluded, as did the district court, that any narrower relief would not fully remedy the harm done to the plaintiffs, even though the scope of relief granted sweeps in some people who don't have clearly valid legal claims. That strikes me as right: A Yemeni national flying from Paris en route to Seattle or Minneapolis could enter the U.S. in New York, Detroit, Dulles, or any of a large number of airports, and to ensure her rights requires a nationwide injunction. To be sure, it is at least possible to imagine that the government could come up with narrower relief. But if the Trump administration were to win on this ground in the Supreme Court, that would simply invite district court judges around the nation to start formulating a patchwork of less-than-nationwide injunctions. The Supreme Court could well think that the attraction of Supreme Court review in this case is that whatever the limits on the ability of a single district court judge to grant nationwide relief, the power to formulate uniform national rules of law is close to the very raison d'ĂȘtre of the Supreme Court.

Bottom Line: A complete victory for the Trump administration in the Supreme Court seems highly unlikely, while the kinds of partial victory that it might win will either quickly lead to new defeats in the lower courts or, more likely, because for that reason the justices will find such partial reversals unattractive, are themselves unlikely.

(3) The suggestion late in the week that the administration would draft a new executive order appeared to be based on a clear-eyed assessment of the low probability of success in further appeals, even as Trump, with characteristic bluster, confidently insisted that he would ultimately prevail. The cleanest way for the administration to proceed would be to issue an executive order that by its terms rescinds and supersedes EO 13769. But what would the new order do?

The low-hanging fruit concerns permanent residents. The Ninth Circuit quite correctly considered the application of EO 13769 to permanent residents notwithstanding White House Counsel's eventual determination under pressure that it does not apply to them. The White House Counsel does not have the legal authority to issue an authoritative construction of an executive order and even if he did, it could be changed at any time. A new executive order signed by the president that makes clear that EO 13769 is no longer in effect and that green card holders can come and go as they please would solve this problem.

But by itself, that would not validate the rest of the policy. The Ninth Circuit opinion expressly states that the stripping of rights of holders of other kinds of visas is likely unconstitutional (or to be precise, that the government had not succeeded in showing a likelihood of successfully defeating the claims to that effect). For a new EO to succeed where EO 13769 failed would seem to require that it rescind nearly all of EO 13769. At a bare minimum, any new policy that has a clear disparate impact on Muslims (as EO 13769 does) would be tainted by the same troubled provenance (the "Muslim ban" as announced by candidate Trump and Trump ally Rudy Giuliani), thus rendering it vulnerable to invalidation as religious discrimination.

Accordingly, for a new EO really to cure the problems with EO 13769 would require that it be something completely new. En route to Florida to play golf with the Prime Minister of Japan, Trump suggested that the new EO would focus on new vetting procedures: “We’re going to have very, very strong vetting. I call it extreme vetting; and we’re going very strong on security. We are going to have people coming to our country that want to be here for good reason.”

I'd bet dollars to doughnuts that Trump has no idea what our current vetting procedures are, much less how to make them stronger. Don't believe me? Listen to Act 2 of last week's episode of This American Life, in which people who actually do the vetting explain what the process involves. It is possible to imagine that Team Trump can come up with additional screens that keep out some people who would otherwise be let in, but the whole idea of the 60 and 90 day travel bans was that this time was supposed to be necessary to study the existing process and come up with a better one. Anything the Trump administration puts together by the coming week will, by his own logic, be half-baked.

But making people jump through some extra hoops is not necessarily unconstitutional, so a half-baked vetting-only order that also rescinds EO 13769 would probably be valid.

(4) Is that the way out? It could be, but the administration has indicated that its new EO will not actually displace EO 13769, except for the clarification with respect to green card holders. The Trump administration apparently intends to continue to litigate--and thus to stand ready to enforce--EO 13769, even after the president signs the new, as-yet-undetermined EO. So don't expect a new EO to concede error or otherwise make the litigation go away. Based on what has been said so far, the Trump administration's apparent plans to pile a new order on top of the existing one are a little like someone who committed murder two weeks ago promising that he won't commit any more murders. That's nice, but it doesn't make him any less guilty of the murder he already committed.

(5) That brings me to my own modest proposal to help out the Trump team and, in a rare convergence of Trump's political interest and the national interest, the cause of right and justice: Trump should deliberately drag out the litigation as long as possible so that it is mooted by the expiration of the 60 or 90 days. During that time, EO 13769 would continue to be stayed, but the Trump team can (pretend to) be working furiously behind the scenes to learn what our current vetting procedures are and how to improve them. Then the president could make a dramatic show of signing a new executive order that does exactly two things: (1) It rescinds EO 13769 in its entirety; and (2) It states that new vetting procedures are in place but for reasons of national security they can't be publicly disclosed, lest their disclosure give an advantage to would-be bad hombres seeking to do us harm.

Meanwhile, visa officers would be given secret directives to make some superficial additions to their vetting procedures. At the same time, Trump could denounce the judiciary, saying something like this: "My first order was totally legal and necessary. If the case had ever gotten to the Supreme Court I would have won a tremendous victory. I only hope that during the time that the order was stayed, no bad people came in but if they did, that's on the so-called judiciary. From now, however, extreme vetting is in place."

This would be a face-saving way for the president to avoid a legal defeat and to enact what he claims to have wanted all along. Sure, some of his alt-right supporters would be disappointed that his Muslim ban was lifted, but by then he and the rest of his administration will have found other red meat to feed them.

In my view, a rational administration that had backed itself into this particular corner would take this way out as the best outcome. Because the current administration is far from rational, however, I regard my option (5) as the least likely to be pursued of the ones I've discussed.


el roam said...

Thanks for that interesting post , The point is , that this administration hasn't dealt with the main and predictable issue indeed :

That the issue in court , wouldn't stand on the merits of the issue , on the core of it , which is : national security as a constitutional value Vs. Constitutional values of rights of individuals and groups. But :

Certainly would stand upon the irreversibility of tangible and imminent contemporary harm, caused to individuals and groups, while they have, it seems clearly , reasonable chance, to win at the end of strategic litigation, and then, the harm already been caused, would be rendered: total loss as such.

This is the mere issue , discussed in the 9th circuit .

So , the strategy had to focus , in advance , upon the heavy shots in favor of Trump's administration , means : National security , strategic and comprehensive plan , while , minimizing provisional harm . The latter, opens many more creative options, endless in fact. Yet :

That is what happens , when you think of your cause , your narrow justice , and not on the legal issue as such , or simply :

How a judge or the system think….


el roam said...

Just clarification to my comment :

All said above , while the government , couldn't show , what was so urgent and current , in introducing such provisional harm into immediate effect , while since September the 11th up to now , the same apparently reasonable order reigns , here I quote the 9th circuit :

" The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v.Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years "


Shag from Brookline said...

A demonstration that hindsight "predictable" is frequently not 20/20.

Shag from Brookline said...

Mike's #5), a new tabula rasa EO, might be deemed by Trump as an admission that he was the "loser" on #13769. I understand that Trump has only signed into law one bill from Congress, to wit, a waiver for "Mad Dog" to serve in the cabinet. Perhaps Trump plans to govern primarily by EOs for some period of time as that keeps the spotlight on himself. Mike's analysis is quite thorough, including with respect to info on 9th Circuit en banc.

Regarding "predictable," is there any doubt that what happened with EO #13768 was unpredictable in the mind of Team Trump? What was predictable was that there would be challenges, many of them, and continuing. Can Trump benefit from hindsight? First, Trump has to understand what happened, and why. Can Trump accept that he acted in haste? Well, consider very early in his presidency Trump challenged the one-China policy with his Taiwan flirtation. A couple of weeks later, Trump seems to, for now, accept the one-China policy. I predict that Trump will continue to be unpredictable - as will his base.

el roam said...

Shag from brookline ,

When factual configuration is current and clear , and that would be and is the issue , then , thinks are rendered predictable . Read carefully my comment shag :

Since , Trump has introduced emergency steps , while no event or urgent situation has occurred ( regarding national security ) the whole process , could be predictable . A reasonable judge and lawyer , must ask a simple question :

Why now ?? why here ?? what has happened since last administration ?? And finally , what , that would justify , irreversible harm .

This is in gross modo , for the rest , you need to understand legal issues regarding predictability , you can make of course sincere efforts , yet , I doubt the outcome . So , keep on pushing hard , or even harder , maybe the harsh would yield a fruit …. Somewhere sometime , god knows the wind path …..

Shag from Brookline said...

Perhaps we can be provided a link "to understand legal issues regarding predictability." I completed law school in 1954 and later than year was admitted to the MA Bar of which I continue as a member in good standing. Back in my law school days, I don't recall formal courses addressing "legal issues regarding predictability." Perhaps law schools today have such courses. But I detect that one may attempt to pull oneself up by one's own bootstraps by claiming after an event occurs that it was predictable. el roam provides more gibberish than Kellyanne Conway and I predict that el roam will continue to do so in his strolling [sic]. And I further predict that link will be missing.

Joe said...

Legal minds, the media and comedians (John Oliver is back tomorrow) -- not necessarily in that order -- will have a field day given the results of the last election. The people involved aren't necessarily happy about the idea, but the first three weeks (no really, it has only been that long) surely show clear evidence of it.

Trump assures us that he will make America great again. Details forthcoming. The other day, he put forth three executive orders. He made some preliminary remarks about one protecting the "blood" of our people though the actual order didn't include that detail. One order noted that it: "shall be the policy of the executive branch to reduce crime in America."

Anyway, I appreciate remarks and figure at some point the Supreme Court has to settle the issue left hanging in U.S. v. Texas (4-4), which ironically at the moment has given some assistance to the states here.

el roam said...

To the Blogger :

Two comments of mine , to " Shag from Brooklin " have been lost , swallowed , please take care of it ....Thanks

Shag from Brookline said...

The Nation features Eric Foner's 2/8/17 "What the Fugitive Slave Act Teaches Us About How States Can Resist Oppressive Federal Power" which closes with this:

"The name of Millard Fillmore, who signed that infamous statute and later ran for president as the candidate of the antiimmigrant American Party, evokes laughter, if it is recalled at all. History’s most painful rebuke to Donald Trump is that he will very likely be forgotten—or, even worse, remembered as the Millard Fillmore of the 21st century. "

A link is available at the Legal History Blog.

Donald R. Frederico said...

Fascinating analysis. And you channel the President well.

Joe said...

I am reminded of Justice Blackmun in his DeShaney v. Winnebago County dissent noting:

"I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975)."

I am of the opinion (for those who like authority, Don Fehrenbacher's wrote a book on the subject) that the antebellum Constitution did not "compel" the denial of rights to blacks or even slaves (who Lincoln at Cooper Union reminded us are only labeled as "persons" in the document) as so many judges deemed appropriate. Some state judges as well as advocates (one later became Chief Justice of the US Supreme Court) made that case. As some do today.

Others think the law and facts compel less. We are in the midst of a peaceful civil war of sorts here.

Unknown said...

Prof. Dorf,

I have read dozens of comments by very intelligent people about the 9CA opinion and Trump's options going forward. I must state that your comments are the most thorough and insightful that I have had read. Thank you!

I do have a quick question that I hope you can answer: Assuming T's EO is a "Muslim ban" (given its disparate impact on Muslims), what Supreme Court opinions do you feel are the most persuasive in support of an argument that prohibiting Muslims (from any of the seven countries, who have never been in the US, and who have no relatives or other contacts in the US) from seeking admission to the US violates the Constitution?

Thank you.


Michael C. Dorf said...

Thanks to all for the comments. Let me just take a brief crack at pvine's question. To my mind, it is really two questions:

1) Does the Constitution protect people outside the US w/ no relatives or other prior contacts w/ the US if they seek admission to the US?

2) Even if so, does anyone have standing to assert their rights?

I regard the case law as a little confused on these points. The strongest case AGAINST proposition 1) is Kleindienst v. Mandel. There is also case law in other areas, such as United States v. Verdugo-Urquidez, holding that the Fourth Amendment doesn't apply to such persons outside the U.S. The ACLU brief in the 9th Circuit and a Lawfare post by Adam Cox ( ) argue that most of the cases denying constitutional rights to aliens outside the US date from a time when even citizens inside the US would have lacked the rights asserted, and are thus of limited value. I think the issue is close. Boumedienne, cited by the plaintiffs and the Ninth Circuit, is a double-edged sword because Justice Kennedy does not simply say that everyone everywhere has constitutional rights. Much of the opinion is devoted to showing that Gitmo is de facto US territory. The negative implication is that if the detainees were held in the territory of a foreign sovereign (at Bagram, e.g.) they might not have a right to habeas.

Bottom Line on Q 1: I think it's close. However, I think the plaintiffs can nonetheless prevail here by stressing that their Establishment Clause claim is "structural," meaning that it's not a rights provision at all, and therefore that it doesn't matter whether the people who are harmed by it are inside the US or outside w/o connections.

That brings us to Q 2, which seems to me the crux of the matter. Can the state of Washington or some other entity or person in the US credibly claim that it, he, she, or they are injured by the denial of admission of refugees? I see no reason in principle why not, but much would depend on the particulars of the claimed injury.

Sorry I can't be more definitive!

Unknown said...

Thank you, Prof. Dorf, for responding to my question.

If you have the time, your response/critique to/of Josh Blackman's recent comments about the import of Justice Kennedy's "bad faith"/"look behind" opinion in Din would be appreciated.

If T re-writes the EO (which I suspect he will) so that it applies only to persons w/o connections to the US, the answers you have provided to my question, and the meaning and scope of the term "bad faith" (as used by Justice Kennedy) might be important in determining the constitutionality of the new EO.


matt30 said...

"Boumedienne, cited by the plaintiffs and the Ninth Circuit, is a double-edged sword because Justice Kennedy does not simply say that everyone everywhere has constitutional rights. Much of the opinion is devoted to showing that Gitmo is de facto US territory."

Wasn't it the case in Boumedienne that de facto control was more important than the fact that gitmo was de facto US territory? This suggests to me that the due process and equal protection provisions of the constitution apply (to restrict government action) anywhere the executive exerts governing-like power.

Or is there a case out there that says constitutional protections only attach to individuals? Seems like we're combining standing injury requirement with the negative rights the 14th amendment provides. If that's the case, it seems like once you get your foot in the door (with standing), you can challenge any practice that violates DP, EP.