“Snowflake” Standing based on the Executive Order’s “Message” in Hawaii v. Trump

March 25th, 2017

Hawaii v. Trump’s nationwide injunction not only barred the provisions of the revised order concerning the issuance of visas, and the denial of entry, but also halted provisions that instructed the Secretaries of State and Homeland Security to undertake a review of other nations that may be subject to heightened vetting.

The Trump Administration argued that the injunction was overbroad because plaintiffs cannot assert standing to challenge “internal-facing” aspects of the executive order. This argument was premised on the fact that one of the plaintiffs, Dr. Elshikh, could only assert an injury because his Syrian mother-in-law was not yet denied a visa. Therefore, any possible injury was not yet ripe.

The district court rejected the argument that the claim is not yet ripe (pp. 25-26):

The Government argues that “the only concrete injury Elshikh alleges is that the Order ‘will prevent [his] mother-in-law’—a Syrian national who lacks a visa—from visiting Elshikh and his family in Hawaii.” These claims are not ripe, according to the Government, because there is a visa waiver process that Elshikh’s mother-in-law has yet to even initiate. Govt. Mem. in Opp’n to Mot. for TRO (citing SAC ¶ 85), ECF No. 145.

The Government’s premise is not true. Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status. See, e.g., SAC ¶¶ 88–90; Elshikh Decl. ¶¶ 1, 3.10 These alleged injuries have already occurred and will continue to occur once the Executive Order is implemented and enforced—the injuries are not contingent ones.

I understood this passage to suggest that the provisions that could affect his mother-in-law inflicted an injury, even though she might ultimately receive a visa through the waiver program. Thus, the claim is ripe. This discussion seemed wrong, in my mind, but utterly unremarkable.

Hawaii’s response reads this discussion in a much broader way.

Now Defendants urge for the third time (Opp. 19) that Dr. Elshikh’s standing is entirely derivative of the harms to his “mother-in-law.” For the third time, Defendants must be told that “is not true.” Op. 26; Dkt. 228, at 6. “Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status.” Op. 26.

I pause to note, again, that the court’s analysis on p. 25-26 concerned ripeness, not standing. Though the inquiries are related, they are not the same.

Hawaii’s discussion proceeds to bleed this expanded notion of standing into the Establishment Clause analysis:

And contrary to Defendants’ representation (Opp. 18), those alleged harms are not limited to “the suspension-of-entry provision” in Section 2. Dr. Elshikh’s declaration discusses at length the harms inflicted by “the Executive Order” as a whole and “the message” in “convey[s]” to him, his family, and his mosque. Op. 24; see, e.g., Dkt. 66-1 ¶ 4 (describing “knowledge” that the government would “discriminate” based on “religious beliefs”); id. ¶ 7 (referring to the impression that the Order “targets Muslim citizens because of their religious views”). The complaint, moreover, states that “Sections 2 and 6 of President Trump’s March 6, 2017 Executive Order are intended to disfavor Islam.” SAC ¶ 107; see also id. ¶ 90.

Note that all of the above citations come from the complaint. Though they were quoted in the decision, the court did not adopt those findings. Here is the key conclusion:

Defendants assert that they cannot see how the Order’s various refugee provisions and its “internal-facing” requirements “could have injured” Dr. Elshikh. Opp. 20, 25-26. But Dr. Elshikh’s claim is that all of these provisions are part of the President’s policy of discrimination, and all of them convey the message that Muslims are outsiders and threats to national security.

This is the crux of the argument. Because Dr. Elshikh perceives a “message” from the entire executive order that “Muslims are outsiders and threats to national security,” there is now standing to raise Establishment Clause challenges to the entire order–even the “internal-facing” aspects that cannot have any possible impact on anyone (until adopted).

That is unquestionably sufficient to establish an Establishment Clause injury. See Catholic League for Religious & Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (en banc) (holding that “adherents to a religion have standing to challenge an official condemnation by their government of their religious views”). Defendants may attempt to refute Plaintiffs’ claims about purpose and the message conveyed, but that is their defense on the merits, not a basis for denying Dr. Elshikh standing to raise the claim.

This claim sounds in Mike Dorf’s “structural” theory of the Establishment Clause. That is, Trump’s sectarian purpose is no longer a necessary condition to enjoin the order, because of how the order is perceived by Muslim-Americans–even as applied to internal-facing actions that will not directly impact anyone.

I’ll call this the “snowflake” theory of standing: the order can be challenged as unconstitutional because of how it makes you feel. Even if the internal review policy is designed to focus on immigration policies for countries that are not predominantly Muslim, because of the “message” it conveys, the review is unconstitutional. This “snowflake” theory of standing melts on the closest of inspection. Far beyond the level of scrutiny established in McCreary, now courts can literally ask people how they feel–even if the law lacks a sectarian purpose–and use those sentiments to enjoin an otherwise lawful action. Again, this inquiry is different from asking if a reasonable, objective observer would see the action as an establishment of religion under McCreary. Rather, the question is whether the order–even if it otherwise passes the Lemon test–makes Dr. Elshikh, or another Muslim-American perhaps, perceives a discriminatory message.

There is a perversity to this strand of reasoning, which was highlighted by EDVA’s decision in Sarsour v. Trump. By preventing the Secretary of State from undertaking a review of how to transform our immigration policy–even in response to judicial orders–the court has “effectively disqualified him from exercising his lawful presidential authority.” In other words, the President can’t even attempt to cure the “forever taint” because his administration is enjoined from considering the issue.  Perpetually, so long as people perceive the President’s actions as having an anti-Muslim animus, the President is permanently disabled–even if the action itself has nothing to do with religion.

And by no means is this limited to the President’s immigration actions. This “snowflake” theory of standing would allow people to raise claims to challenge a whole host of actions that are traditionally beyond the cognizance of federal courts. As I noted on Politico:

Imagine if Trump were to announce that he wants to conduct drone strikes in Syria to root out “radical Islamic terrorists”? Could a court halt the actions, finding they were motivated by the same anti-Muslim animus the president expressed on the campaign trail? Or, could a court halt an executive action for supposedly bearing animus toward women, by citing the president’s infamous rapport with Billy Bush on “Access Hollywood”? Nothing Trump can do would ever eliminate that taint.

The basis for this injunction is not only nationwide, but also omnipresent–nothing can be done to escape it in all aspects of the President’s administration.