Standing, Substantive Rights, and Structural Provisions in the Challenge to Muslim Ban 2.0

by Michael Dorf

The Trump administration's revised executive order issued on Monday ("Muslim Ban 2.0") is less draconian than the executive order it replaced ("Muslim Ban 1.0") in the following key respects:

-- It removes Iraq from the list of countries whose nationals may not enter the country for 90 days.

-- It eliminates the special indefinite suspension of admission of Syrian refugees, relegating them to the same suspension of all refugees for 120 days.

-- It makes clear that neither ban applies to current holders of valid visas and does not go into effect until March 16, 2017, thus avoiding the chaos that occurred when Muslim Ban 1.0 was implemented immediately.

-- It eliminates the special preference for members of minority religions in considering refugee applications.

These are all genuine improvements for which people who vigorously opposed Muslim Ban 1.0 by protesting, litigating, or taking other steps should feel a sense of accomplishment. That said, Muslim Ban 2.0 remains highly problematic in the following respects:

-- The administration has given itself a time reset. As I noted in an earlier post, if the administration were serious about reviewing its vetting procedures, it should now need less than the 90 and 120 day periods it originally gave itself in Muslim Ban 1.0, because it should have been conducting that review in the intervening month and change. And yet, the administration has given itself another full 90 and 120 days. The only thing that comes close to an excuse for that approach is the claim that the review will divert the attention of the relevant staff from their day-to-day visa processing duties, so it could not be conducted while the ban was being stayed. As I explained in the prior post, this is not credible.

-- Meanwhile, as immigration lawyer Margaret Moody has observed, the travel ban is not likely to be temporary, because there is no functioning government likely to cooperate with US officials in the affected countries. Ms. Moody was discussing Muslim Ban 1.0, but the same observation applies with respect to the six countries at issue in Muslim Ban 2.0. Thus, when the Trump administration and its supporters describe the ban as a "pause" or a "temporary inconvenience" they are not accurately characterizing how it is likely to work.

-- Despite the recitation in the Muslim Ban 2.0 executive order itself of the threat that refugees and people from the six countries supposedly pose, the national security justification for the ban remains extremely weak, as explained in a leaked document from the Department of Homeland Security itself.

-- Most importantly, although the Trump administration apparently crossed more t's and dotted more i's before rolling out Muslim Ban 2.0 than it did before rolling out Ban 1.0, the new version can hardly be said to have been generated by a process that was untainted by the administration's longstanding anti-Muslim animus.

Will the lawsuits that are being filed or amended to challenge Muslim Ban 2.0 succeed despite the changes? To my mind, the core of the challenge remains the same: The disparate impact on Muslims is intentional discrimination in violation of the equal protection component of the Fifth Amendment Due Process Clause and the Free Exercise and Establishment Clauses of the First Amendment. However, given the narrower scope of the new order, it could be argued that it will be more difficult for plaintiffs to establish standing and that the new order does not affect people who have substantive constitutional rights. It will be useful to separate these contentions.

Standing

Non-citizens outside the U.S. without prior connections to the U.S. might not have access to U.S. courts, but people in the U.S. with connections to them have standing. In the Washington state litigation, the state asserted a proprietary injury on behalf of state universities deprived of already-scheduled lecturers and students. The same kind of injury seems relatively easy to establish even with respect to persons affected by the travel ban who do not yet have travel visas. For example, the University of Washington could issue an invitation to a lecturer who is a national of one of the six countries and currently resides in some other country, maybe Canada. Absent Muslim Ban 2.0, the (let's say) Syrian national who is a professor at the University of British Columbia would have little difficulty getting a visa to make the relatively short trip from Vancouver to Seattle to give a lecture at UW. But now she is banned. If, as the district court and the Ninth Circuit held in the earlier litigation, the state had standing to challenge Ban 1.0, it should have standing to challenge Ban 2.0.

Substantive Rights

Even if someone with access to a U.S. court has standing to complain about the treatment of persons outside the U.S., in order to obtain an injunction, it is necessary to show that Muslim Ban 2.0 is unconstitutional. In the Washington case, the Ninth Circuit found a likelihood of success on the merits for the claims that people who already had visas were having their ability to travel restricted without due process.

But Muslim Ban 2.0 carves out current visa holders. It adversely affects aliens outside the U.S. without visas. Defenders of the ban point to cases such as Kleindienst v. Mandel for the proposition that such persons lack First Amendment rights and to cases such as United States v. Verdugo-Urquidez for the proposition that such persons lack other (in that case Fourth Amendment) constitutional rights. If they're right that aliens outside the U.S. without prior substantial connections to the U.S. lack constitutional rights, then it doesn't much matter that the state of Washington or a private employer has standing to assert injury based on what is done to those aliens, as what is done would be constitutionally valid.

Are the Ban's defenders right? A constitutional scholars' brief filed in the Ninth Circuit pushes back against the idea that Kleindienst or any other case gives the government a truly blank check to discriminate on what would be clearly illicit grounds in granting or denying visas.

Because the scholars' brief was directed at Muslim Ban 1.0, it focuses chiefly on the limits on the government's authority with respect to persons already connected to (and typically present in) the United States. Even then, however, the brief notes that in Kleindienst itself, the Court said that it would defer to a "facially legitimate and bona fide reason," but did not go so far as to hold that the First Amendment had no application to visa determinations for aliens. The brief adds that no authority supports the proposition that religious discrimination is a legitimate reason for government decision making.

It remains to be seen who will prevail in this argument. I think the scholars' brief is clearly right as applied to Muslim Ban 1.0 but that under the precedents the issue is closer with respect to Muslim Ban 2.0. The Boumediene case surely cuts against the government's categorical position, as it recognized a constitutional right--to habeas corpus absent a valid suspension--in aliens outside the U.S., but perhaps that's a special case because, as the Court saw the matter, the U.S. exercises de facto sovereignty over Gitmo.

Structural Provisions

Meanwhile, however, it's possible for the state of Washington or a private firm or some other entity or person harmed by Muslim Ban 2.0 to prevail in court even if aliens outside the U.S. have no constitutional rights, if Muslim Ban 2.0 violates a structural provision of the Constitution. I can illustrate with a hypothetical example.

Suppose Congress passes and the president signs the "Foreign Terrorist Entry Prevention Act" (FTEPA) which provides:

(1) The Secretary of State shall prepare a list of foreign countries that pose a heightened risk of terrorism from their nationals and submit that list to Congress.
(2) A majority vote of either house of Congress within 60 days of receipt of the Secretary's list shall remove a country from the list.
(3) A majority vote of both houses of Congress within 60 days of receipt of the Secretary's list shall add a country to the list.
(4) No action within 60 days of receipt of the Secretary's list makes that list effective.
(5) No person who is a national of a country on the list that results from the foregoing procedure may enter the United States.

Now suppose that the Secretary compiles a six-country list that does not include Pakistan. Suppose that within the 60 days, bare majorities in the House and Senate add Pakistan to the list. The Secretary of State and president say that Pakistan doesn't belong on the list but that they will enforce the terms of FTEPA. Now a Pakistani national whom Microsoft wishes to employ in the State of Washington applies for a visa and is rejected on the basis of FTEPA. Microsoft has standing to challenge that determination because it is injured. And the fact that the alien (we'll assume) lacks any constitutional rights is irrelevant, because Microsoft is not challenging FTEPA on the ground that it violates anybody's rights. Microsoft brings its challenge under Article I, Section 7, citing cases like INS v. Chadha (an immigration case!), which invalidated the legislative veto.

Religious discrimination can readily be said to violate a structural constitutional provision, namely the Establishment Clause. Although the SCOTUS has not weighed in on the subject in exactly these terms (except for statements by individual justices in concurrences and dissents), a substantial body of scholarly literature argues that the Establishment Clause is indeed a structural provision (which is not mutually exclusive with its also conferring individual rights).

Moreover, even when couched as a complaint about equal protection (per the Fifth Amendment Due Process Clause) or Free Exercise, the challenge to religious discrimination in Muslim Ban 2.0 can be readily framed as invoking structural principles. Using slightly different vocabulary (distinguishing "existence conditions" from "application conditions") Professor Matthew Adler and I argued in a 2003 law review article that anti-discrimination principles frequently operate structurally.

Accordingly, even if aliens outside the U.S. without current visas lack individual constitutional rights--itself a highly contestable proposition--Muslim Ban 2.0 can and should be struck down on structural grounds.