Perhaps the most stunning aspect of the panel’s decision in Washington v. Trump was that it applied a standard of review approaching strict scrutiny to assess whether the executive branch’s actions in the realm of foreign affairs violated the quasi-rights of aliens with no connection to the United States.
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. 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. We disagree.
Why was this standard so stunning, for me at least? Because barely 6 months earlier, the 5th Circuit applied a standard approaching rational basis review to assess whether the executive branch’s actions in the realm of domestic affairs violated the First Amendments rights of U.S. Citizens. I speak, of course, about Defense Distributed v. Department of State, a case for which I am co-counsel.
In that decision, the majority opinion upheld a prior restraint on free speech based solely on the government’s vague assertions that someone, somewhere, could download Defense Distributed’s files, and use them to create a gun, and commit acts of terrorism. Has it ever happened before? No. But the risk that it could happen is sufficient to violate the First Amendment. Consider Judge Davis’s analysis, which piles inference-upon-inference in classical rational basis mode:
If we reverse the district court’s denial and instead grant the preliminary injunction, Plaintiffs-Appellants would legally be permitted to post on the internet as many 3D printing and CNC milling files as they wish, including the Ghost Gunner CNC milling files for producing AR-15 lower receivers and additional 3D-printed weapons and weapon parts. Even if Plaintiffs-Appellants eventually fail to obtain a permanent injunction, the files posted in the interim would remain online essentially forever, hosted by foreign websites such as the Pirate Bay and freely available worldwide. That is not a far-fetched hypothetical: the initial Published Files are still available on such sites, and Plaintiffs-Appellants have indicated they will share additional, previously unreleased files as soon as they are permitted to do so. Because those files would never go away, a preliminary injunction would function, in effect, as a permanent injunction as to all files released in the interim. Thus, the national defense and national security interest would be harmed forever. The fact that national security might be permanently harmed while Plaintiffs-Appellants’ constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.
This is in no sense the correct analysis for upholding a prior restraint.
In light of the “no evidence” standard imposed in Washington v. Trump, our legal team deemed it appropriate to alert the Fifth Circuit of this new authority. Through our 28(j) letter, we articulated the fact that if the quasi-rights of non-citizens can only be violated by showing actual evidence that such aliens have committed acts of terrorism, then certainly the constitutional rights of U.S. citizens cannot be violated by allegations to vague and unspecified threats. The government must submit evidence that a foreigner has in fact downloaded the files, and used them to engage in an act of violence against American interests. Anything less would not be sufficient to meet this standard. (Cutting to the chase, no such crime has ever been committed; that is why the prior restraint is bunk).
As our letter explains:
Of course, noncitizens have no constitutional right to enter the United States. Yet in Washington, the purported harm to public universities in being temporarily denied association with people from Iran, Iraq, Somalia, Libya, Yemen, Syria and Sudan outweighed the President’s national security concerns about the current level of vetting for such nationals.
Here, the Government is plainly infringing on the fundamental First Amendment speech rights of American citizens—also based on nothing more than the assertion of a public interest. Universities, public and private, have also objected to the challenged prior restraint.
The 9th Circuit’s decision does not exist in a vacuum. It established an absolutely bonkers standard of review to consider the quasi-rights of non-citizens. If precedents matter, then the actual rights of citizens should be that much harder to violate.