Day: February 6, 2017

DOJ Files Reply in Support of Emergency Motion for Stay Pending Appeal

The brief can be downloaded here. Perhaps the most significant development in this fast-moving story is that Acting Solicitor General Noel Francisco, and Acting Assistant Attorney General Chad Readler, did not sign the brief because of an amicus brief was submitted by the Jones Day law firm (where both worked until two weeks ago).

The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm.

Oral arguments are scheduled by phone for Tuesday at 3:00 PT.

I’ll provide more analysis as I make my way through the brief.

Update 1: The government makes a point that I discussed in Part II of my series on this case–the non-discrimination provision affects only visas, not entry, and does not in any way implicate non-immigrant visas:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality- based distinctions in 8 U.S.C. § 1152(a)(1)(A). But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry. It also has no application at all to aliens who hold or seek non- immigrant visas, such as student visas or work visas. And § 1152(a)(1)(B) permits, as here, a temporary suspension of entry pending completion of a review and revision of procedures for processing visa applications.


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The Statutory Legality of Trump’s Executive Order on Immigration: Part III

In this post, I will continue my discussion the statutory legality of President Trump’s executive order on immigration. (See Parts I and II). Again, I am not talking about the constitutional issues. Here, I will discuss another aspect of the executive order not addressed in my previous post: the issuance of visas.

8 U.S.C. 1152(a)(1) provides:

(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

Some have argued that this statute (enacted in 1965) trumps 8 U.S.C 1182 (f) (enacted in 1952). The latter provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The later-in-time canon only applies if the statutes are in tension. They aren’t.
First, 1152(a)(1) only affects the issuance of visas. It does not affect the broader power over “entry.” I discuss this topic at length in Part II. Thus, the statutes are not at all in tension with respect to Section 3(c) of the executive order, which limits “entry.” Congress gave the President the power to deny visas to any class of aliens he deems detrimental to the interests of the United States. Thus, if an alien is issued a visa, he can be denied entry, even at the last minute as he is about to cross into the airport terminal (for example, if an agent determines he submitted fraudulent information on his application).

Second, 1152(a)(1) implicates the “issuance of visas.” But it does not, as far as the text goes, concern the revocation of visas. I realize this is a thin distinction, but to the extent the government has revoked visas (the precise number is up for debate), nothing in this provision prohibits it from doing so based on nationality. One could imagine a scenario where the United States and another country enjoy friendly relations, and a visa is issued. At some point in time, those relations deteriorate, and perhaps a state of war with that nation is even declared. It would unconscionable if the Secretary could not decide to revoke all visas issued to citizens of that nation. This would be an explicit discrimination based on nationality.

Third, subparagraph (B) seems, at least based on my own reading, to allow the Secretary to adopt “procedures for the processing of immigrant visa applications” that could explicitly be based on national origin. That is, subparagraph (B) states that subparagraph (A) “shall [not] be construed to limit” the Secretary’s authority. Some have argued that reading subparagraph (B) in this fashion should render (A) a nullity. Hardly. The general policy is that visas should be issued without concern for nationality. But when the Secretary deems it necessary (perhaps for national security concerns), he can adopt procedures for issuing visas based on nationality. To modify my earlier hypothetical, following a declaration of war against country X, it would be unconscionable to tell the Secretary that he cannot cease issuing visas to nationals of that country. Again, this would be a facial form of nationality discrimination. This reading is buttressed by 1182(f), which gives the Secretary the ultimate trump card: deny entry to an alien who has a validly issued visa based on national security concerns. The greater power to deny entry includes the far lesser power to deny a visa.

In short, the executive order effects a temporary stoppage of aliens (under 1182(f)), and during that time, instructs the Secretary to exercise his power under 1152(a)(1) to enact a vetting program with different standards for specific countries.

Again, nothing in text or judicial precedent seems to foreclose the order. Please send me any other arguments you’ve come across. And to repeat a point I made earlier, 1152 only applies to “immigrant visas.” Refugees, and those who habe non-immigrant visas, cannot avail themselves of this provision at all.

Further, I don’t know 1152 is is even subject to judicial review. I could not find any precedents that are directly on point, but the D.C. Circuit did determine that the latter portion of Subparagraph (B)–that is, determining ” where such applications will be processed”–was not subject to judicial review under the A.P.A. There is “no law to apply.”

First, the broad language of the statute suggests that the State Department policy is unreviewable. Congress has determined that “[e]very alien applying for an immigrant visa and for alien registration shall make application therefor in such form and manner and at such place as shall be by regulations prescribed.8 U.S.C. § 1202(a) (emphasis added). This section grants to the Secretary discretion to prescribe the place at which aliens apply for immigrant visas without providing substantive standards against which the Secretary’s determination could be measured. Plaintiffs argue that there is a standard against which to measure the Secretary’s decision in the prohibition against nationality discrimination contained in 8 U.S.C. § 1152. That argument is untenable after the adoption of section 633. That enactment made clear that the prohibition against nationality discrimination does not apply to decisions of where to process visa applications. These determinations are left entirely to the discretion of the Secretary of State
In addition, the nature of the administrative action counsels against review of plaintiffs’ claim. By way of comparison, the Supreme Court has held that the Food and Drug Administration’s refusal to take enforcement action is unreviewable because it “involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise.” Heckler, 470 U.S. at 831, 105 S.Ct. at 1655–56. Similarly, in this case the agency is entrusted by a broadly worded statute with balancing complex concerns involving security and diplomacy, State Department resources and the relative demand for visa applications. However, in this case the argument for executive branch discretion is even stronger. By long-standing tradition, courts have been wary of second-guessing executive branch decision involving complicated foreign policy matters. See, e.g, Williams v. Suffolk Ins. Co., 38 U.S. 415, 420, 13 Pet. 415, 10 L.Ed. 226 (1839); Garcia v. Lee, 37 U.S. 511, 517–18, 520–21, 12 Pet. 511, 9 L.Ed. 1176 (1838); Foster v. Neilson, 27 U.S. 253, 307–310, 2 Pet. 253, 7 L.Ed. 415 (1829). As we noted in another context, “where the President acted under a congressional grant of discretion as broadly worded as any we are likely to see, and where the exercise of that discretion occurs in the area of foreign affairs, we cannot disturb his decision simply because some might find it unwise or because it differs from the policies pursued by previous administrations.” DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 887 F.2d 275, 282 (D.C.Cir.1989). In light of the lack of guidance provided by the statute and the complicated factors involved in consular venue determinations, we hold that plaintiffs’ claims under both the statute and the APA are unreviewable because there is “no law to apply.”
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 104 F.3d 1349, 1353 (D.C. Cir. 1997) (Sentelle, Edwards, and Randolph).

The reasoning that applies to the latter portion of Subparagraph (B) (about location) would seem to apply equally to the former portion–“procedures for the processing of immigrant visa applications.” In other words, the Secretary can consider nationality when determining the process for approving immigrant visas.

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Second-Guessing on National Security

Every year when I teach Korematsu, I always make a point to discuss the remarkable confession of error filed in 2011 by Acting SG Neal Katyal, which stated in frank terms that information submitted to the Court was false. Hindsight, though, is always 20/20. I ask my students what if, in fact, there was a threat from certain Japanese-Americans on the west coast, and that the exclusion policy was the only way to protect national interests? What if the government had certain classified information that was not, or perhaps could not, be disclosed to the Court? What if the Court had ruled that the exclusion order was unconstitutional, and someone freed from an internment camp had engaged in a terroristic activity? (Or, as Justice Scalia put it in his Boumedienne dissent, judicial intervention “will almost certainly cause more Americans to be killed.”).

I pose these students to my question to get them to think about the limited institutional capacity of courts. Judges make their decisions based on a limited set of facts: the briefs, the news, and their own values. At the end of this discussion, I note that the questions are largely hypothetical. Even in recent cases, the courts have not second-guessed the administration’s determinations of what does, and does not, pose a threat to national security. Even in cases where such interests are implicated (such as the Pentagon Papers case or the Guantanamo cases), the Court takes the facts submitted as a given, but stresses that the government has not met some heightened burden of proof to justify the actions..

Now, however, we are in a very different places. Consider this colloquy from Judge Robart’s hearing:

THE COURT: The rationale for Section 3 is invoking 9/11. And my question to you is: Have there been terrorist attacks in the United States by refugees or other immigrants from the seven countries listed, since 9/11?

MS. BENNETT: Your Honor, I don’t know the specific details of attacks or planned attacks. I think — I will point out, first of all, that the rationale for the order was not only 9/11, it was to protect the United States from the potential for terrorism. I will also note that the seven countries that are listed in the Executive Order are the same seven countries that were already subject to other restrictions in obtaining visas that Congress put in place, both by naming countries, Syria and Iraq, and that the prior administration put in place by designating them as places where terrorism is likely to occur, or — the specific factors are whether the presence in a particular country increases the likelihood that an alien is a credible threat to U.S. security or an area that is a safe haven for terrorists.

THE COURT: Well, let me walk you back, then. You’re from the Department of Justice, if I understand correctly?


THE COURT: So you’re aware of law enforcement. How many arrests have there been of foreign nationals for those seven countries since 9/11?

MS. BENNETT: Your Honor, I don’t have that information. I’m from the civil division if that helps get me off the hook.

THE COURT: Let me tell you. The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone that says: We have to protect the United States from these individuals coming from these countries, and there’s no support for that.

From a jurisprudential perspective, this exchange is remarkable. The judge is telling the Justice Department official that because there have been zero “arrests of foreign nationals,” there is no basis to support the policy. The DOJ lawyer, left flat-footed, gave the wrong response. If I were in her shoes, I would have replied:

Your honor, are you aware of the number of investigations against such people that have not been made public, or the number of terrorists incidents that were averted due to never-before-publicized investigations?

The answer of course is the judge has no idea. His addition of “as best as I can tell” was more-than-revealing. As we are often reminded, the absence of any terrorist attacks does not mean none are being thwarted.

Later in the argument, Judge Robart suggested that there is no rational basis to justify this action.

THE COURT: Well, counsel, I understand that from your papers, and you very forcefully presented that argument. But I’m also asked to look and determine if the Executive Order is rationally based. And rationally based to me implies that to some extent I have to find it grounded in facts as opposed to fiction.

If only this were true of the rational basis test! The rational basis test, as understood by Williamson v. Lee Optical, encourages courts to manufacture facts which can support the government’s action. I’ve written at length that such a test is a judicial fiction. I encourage courts to demand real evidence to uphold all state action. But what we have here is not rational basis review, in even its most rigorous form. This sort of pretextual analysis sounds in the Court’s decision in Whole Women’s Health: that the state’s proffered evidence is pretextual, and false, and the laws are not truly public safety measures. But here, unlike in the abortion caselaw, where facts are known to the world, the government (purportedly) has some evidence that is private that justifies their decisions.

Judge Robart is not alone in second-guessing the administration’s conclusions. A number of former senior officials from the Obama, Bush, and Clinton administrations have submitted a declaration to the 9th Circuit, which emphatically rejects any assertion that the Executive Order will benefit national security. It states:

We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.

As Steve Vladeck noted on Twitter, this statement further undermines the Trump administration’s argument that the injunction harms national security interests.

To rule against the government here, the 9th Circuit, and ultimately the Supreme Court, will have to hold that the Executive Order is premised on “alternative facts.” This is not something any court (to my knowledge at least) has ever done. Judge Robart addresses this fact during this colloquy with Washington Solicitor General Noah Purcell:

THE COURT: All right. Has any court ever set aside an immigration law or regulation on equal protection grounds based on rational review? I understand it’s not the centerpiece, but you’ve pled it and so you’re going to get questioned about it.

MR. PURCELL:  … I am not aware of an immigration order being set aside on equal protection grounds. On the other hand, I’m not aware of any Executive Order quite like this one, that there’s so much evidence, before there’s even been any discovery, that it was motivated by animus, religiously targeted, and just utterly divorced from the stated purposes of the order. And I’m happy to talk about that more in terms of — the government is asking for an extraordinary level of deference here, essentially saying that you can’t really look at what were the real motives for the order; you can’t test its legality. And we just think that’s wrong, legally and factually.

As I’ve told several media sources, this case is in every sense unprecedented.

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