One of the most remarkable aspects of the oral arguments in Washington v. Trump, and the ensuing unanimous opinion, was the court’s demand that the government provide satisfactory evidence to justify the executive order. Generally, in the sphere of national security, the courts take the government’s representations on their face.(See my earlier post on second-guessing on national security). That was not the approach employed in Washington v. Trump. The panel imposed a “no evidence” standard on the government. Consider this discussion concerning the balance of hardships:

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.

Here, taking Washington’s assertions of fact in its complaint about national security as true, the court found that the government did not meet its burden to rebut that evidence.(In another area of schedfreude, I’ve argued for some time that courts should accept the facts as pleaded in a TRO). More to the point, Washington’s assertions were based on newspaper clippings, whereas the government had access to classified information. (The statement from numerous national security officials, who received briefings as recently as a month ago, could serve a different purpose).

The court repeats that there is no evidence that any aliens from these countries has “perpetrated a terrorist attack.” This is a much higher burden than whether any aliens were arrested, the question pose during oral arguments.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.7

Why is this the standard? Does the government really need to wait for an alien from one of these countries to kill Americans before such a ban is justified? I am totally unsympathetic to the ban, but this standard of review is bonkers.

Further, in a footnote, the government asserts that Congress’s decision to impose heightened visa restrictions does not justify a far greater ban on entry.

7 Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.

This sentiment goes far behind saying there is “no evidence.” Now, the evidence provided–that is, supported by the President and Congress–is not adequate.

Finally, in another footnote, the court urges the Executive to submit classified information (through the Classified Information Procedures Act) for the court’s review.

Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.8

In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice procedures to protect classified materials in civil cases); 28 C.F.R. §17.46(c) (“Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information . . . .”); W.D. Wash. Civ. L.R. 5(g) (providing procedures governing filings under seal).

And what if that evidence is still not adequate? I fear the court is opening a door that it will promptly slam shut. The judges have already determined this ban is inadequate. Now, the government needs to provide dossiers to persuade the court that the policy is proper. It’s not enough to produce some evidence. They must produce satisfactory evidence. That is why the phrase “no evidence” is not entirely accurate. The court wants “adequate evidence.”

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