Analysis of IRAP v. Trump Part IV: Judge Niemeyer’s Dissent

June 2nd, 2017

This post is the fourth part of a five-part series on the Fourth Circuit’s recent en banc decision in IRAP v. Trump. Part I analyzed how the court considered pre- and post-inauguration statements. Part II analyzed how the court marshals the Supreme Court’s precedents concerning standing, reviewability of immigration decisions, and the Establishment Clause. In Part III, I analyzed the concurring opinions of Judges Keenan, Thacker, and Wynn. In this part, I will analyze Judge Niemeyer’s Dissent. Part V will analyze the dissents of Judges Shedd and Agee and discuss what happens as this case is appealed to the Supreme Court.

Judge Niemeyer’s dissent charges that the district court “seriously erred” and that its injunction was “not only unprecedented” but was “inappropriate under any standard of analysis” (pp. 148-49). The en banc Fourth Circuit’s analysis was likewise “unprecedented and unworkable,” he wrote. The dissent’s charges were based on the Supreme Court’s decision in Kleindienst v. Mandel (1972), which constrained judges to the four corners of action when determining whether it was bona fide. In my view, a careful review of Mandel and its progeny is essential to understanding where the Fourth Circuit deviated from precedent.

Denial of Mandel’s Waiver

Ernest E. Mandel, a Belgian citizen, was a self-avowed “revolutionary Marxist.” He had previously visited the United States in 1962 and 1968 even though, by statute, his political beliefs rendered him inadmissible. His entry was made possible through a waiver granted by the Attorney General.

Three statutory provisions are relevant to the case. Section 212(a)(28)(D) and (G) of the Immigration and Nationality Act (INA) deemed inadmissible aliens who “advocate[d]” for or “wr[o]te or publish[ed]” about, “world communism or the establishment in the United States of a totalitarian dictatorship.” But section 1182(d)(3)(A) allowed the Attorney General to grant a waiver, in his “discretion,” so that an otherwise inadmissible alien can receive an entry visa. (This final provision, which is still in effect, appears in the same section that contains § 1182(f), which allows the President to deny entry to those he finds would be detrimental to American interests).

In September 1969, Mandel applied a third time for a nonimmigrant visa in order to lecture at several American universities, but this time his visa was denied. The specifics of the denial shed light on the scope and limitations of the Court’s decision. The Consul at Brussels informed Mandel by letter that he had previously been granted waivers in 1962 and 1968 (which he was unaware of), and that “another request for waiver was being forwarded to Washington in connection with Mandel’s second application for a visa.”

On December 1, the Consul at Brussels told Mandel that after further review, his visa had been declined. The State Department had in fact supported a waiver, but the Attorney General denied it, pursuant to his discretion under § 1182(d)(3)(A). A February 13, 1970 letter to Mandel’s attorney from the Immigration and Naturalization Service, acting on behalf of the Attorney General, stated that “it had determined that Mandel’s 1968 activities while in the United States ‘went far beyond the stated purposes of his trip, on the basis of which his admission had been authorized and represented a flagrant abuse of the opportunities afforded him to express his views in this country.’” As such, “favorable exercise of discretion, provided for under the Act, was not warranted and that Mandel’s temporary admission was not authorized.” Ultimately, Mandel delivered his address by “transatlantic telephone.” This final letter afforded the basis or the Court’s ruling.

“Facially Legitimate and Bona Fide”

Mandel, joined by several other American scholars (including Noam Chomsky) brought suit in the Eastern District of New York, seeking “a declaratory judgment that on its face and as applied” that the three relevant statutory provisions were unconstitutional. A three-judge panel agreed in Mandel v. Mitchell. The court rejected the grounds for inadmissibility that were premised not on violent advocacy but on “restraining the entry of disfavored political doctrine.”

On appeal, only Justices Douglas, Marshall, and Brennan would accept this argument. Justice Blackmun’s majority opinion did not dispute the underlying right of the professors to “hear, speak, and debate with Mandel in person.” However, the First Amendments rights implicated by the denial of the visa were “not dispositive.” Rather, the “narrow issue” in dispute was whether the professors could “compel the Attorney General to allow Mandel’s admission.” The majority answered no. The Court deferred to the discretion Congress “properly . . . placed in the hands of the Executive.” (In contrast with the Fourth Circuit’s ruling, the Supreme Court in Mandel wasn’t even willing to assert a standard to determine importance of the underlying First Amendment claim, let alone to determine whether the Attorney General made an adequate showing of national security to justify Mandel’s exclusion.)

Solicitor General Griswold urged the Court that the government should prevail even “where no justification is advanced for denial of a waiver.” That is, the waiver can be denied without an accompanying letter of any sorts. The Court rejected this request to afford the government “sole and unfettered discretion” with respect to denial of visas. It is here that the oft-quoted “facially legitimate and bona fide” standard was adduced. Justice Blackmun determined the Court did not need to reach the government’s preferred position because in this case “the Attorney General did inform Mandel’s counsel of the reason for refusing him a waiver.” Even though “[t]he Government has chosen not to rely on the letter to counsel,” insisting that no reason needed to be given, the Court relied on the letter, in which the “official empowered to make the decision stated that he denied a waiver because he concluded that previous abuses by Mandel made it inappropriate to grant a waiver again.”

Critically, the Court stressed, the “reason” given in the letter was “facially legitimate and bona fide.” The subjective motivations of the Attorney General were not considered. In the following paragraph, the Court restated the standard in nearly-identical terms: “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” The “exercise” of the denial of the visa, and the “basis” of that denial are the reasons stated in the communiqué.

Here, the crux of the Court’s analysis focused on the denial letter sent by the government to the plaintiff. The discussion of legitimacy and bona fides was premised on the four corners of the letter—whether or not that was the actual purpose animating the Attorney General’s denial. This context reveals how far afield the Fourth Circuit’s analysis is from Mandel and subsequent cases in which the Court has reiterated the applicability of the standard.

Justice Marshall’s Dissent

The dissent written by Justice Marshall, joined by Justice Brennan, helpfully reaffirms the narrow meaning of “facially legitimate and bona fide” in the majority opinion. Marshall wrote, “[T]he majority demands only ‘facial’ legitimacy and good faith,” which “means that this Court will never ‘look behind’ any reason the Attorney General gives.” That is, the court’s review is limited to the reason given by the Attorney General in the letter, not anything outside the letter that would cast doubt on such a conclusion. In a footnote, Marshall distinguishes between the government’s “facially sufficient reason” from “subsequent challenges to the actual good faith and sufficient of the reasons.” The Court’s test permits judicial scrutiny of only the former. This was, to Marshall’s mind, a problem, because “[e]ven the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham.”

How did Marshall know the Attorney General’s citation to “Mandel’s behavior on his previous visit” was a sham? Marshall’s implication was that Mandel was denied a waiver because of his political beliefs. Bolstering this charge is the extremely small number of waivers that were denied: in 1971, only 14 out of 6,210 applications for waivers were denied (.23%) and the year before 4 out of 6,193 were denied (.06%). This miniscule denial rate was almost certainly due to arbitrary and capricious factors; that is, a purpose that was neither legitimate nor bona fide. But the Court was not concerned with any facts beyond those stated in the denial letter. So long as the message sent from the government to Mandel made no reference to illegitimate or bad faith decisions, the action is upheld. Justice Marshall was profoundly disturbed that the Court was turning a blind eye to what is behind the curtain. The Court would return to this issue five years later.

Fiallo v. Bell

In Fiallo v. Bell (1977), Justice Powell writing for seven Justices reaffirmed Mandel’s narrow scope of review for immigration decisions that affect the constitutional rights of citizens. Under the law in effect at the time, “parents” of U.S. citizen “children” were granted special preferences for immigration status. However, “children” of illegitimate fathers—that is, a father that never married the child’s mother, or never recognized the child—were not afforded the same special preferences. Several fathers of illegitimate children who were denied visas challenged the statute’s constitutionality on equal protection and due process grounds.

Justice Powell rejected the challenge. In doing so, he cited Mandel, among other cases, to establish “the limited scope of judicial inquiry into immigration legislation.” He concluded this narrow review is appropriate even where the government’s actions implicate “the fundamental constitutional interests of United States citizens and permanent residents in a familial relationship.” In Mandel, he noted, the Court had declined to conduct a searching judicial inquiry notwithstanding the challengers’ contention that “the Attorney General’s statutory discretion to approve a waiver was limited by the Constitution and that their First Amendment rights were abridged by the denial of Mandel’s request for a visa.” Not so, said Justice Powell, as the Court “rejected the suggestion that more searching judicial scrutiny is required,” even when “immigration legislation” intrudes “on other constitutional rights of citizens.” Though Mandel was limited to reviewing the Attorney General’s denial of a visa, the Court extended its rationale to “review[ing] the broad congressional policy choice at issue here,” which should not be performed “under a more exacting standard.”

Justice Marshall’s dissent, joined once again by Justice Brennan, distinguished Mandel on two grounds. First, he contended that unlike the admission statute at issue in Mandel, the provision here was designed to “accord rights, not to aliens, but to United States citizens.” Second, and far more importantly for purposes of our inquiry, Mandel is best read to apply to the case-by-case “individual determinations by the Attorney General,” not a broad policy statement like a statute—or, I would add, a President’s executive order affecting entire classes of aliens.

Kerry v. Din

More recently, in Kerry v. Din (2015), the Court reaffirmed Mandel’s instruction to limit review of negative immigration decisions to facial legitimacy and bona fides. Fauzia Din, a U.S. citizen, was married to Kanishka Berashk, an Afghan national and former Taliban civil servant. Din applied for an immigrant visa for her husband, and the consular officer at the U.S. embassy in Islamabad told him that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B), which deems inadmissible aliens who had engaged in “terrorist activities.” Berashk was not given any specific reason for the denial beyond the citation to the statute.

The case closely parallels Mandel. Judge Niemeyer explained that “[t]he similarities between Mandel and this case are numerous and significant.” In both cases, visas were denied based on an immigration official exercising discretion delegated by Congress. Mandel’s letter cited prior abuses of the visa program, while Din’s denial cited his prior “terrorist activities.” Were these the real reasons why the visas were denied? We don’t know because the Court cared only that the proffered reasons were rational and acceptable.

Because Berashk himself had no cause of action, Din filed for mandamus on his behalf in the Northern District of California and sought a “declaratory judgment that 8 U.S.C. § 1182(b)(2)-(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied.” Justice Scalia’s opinion for the Chief Justice and Justice Thomas rejected Din’s claim. Because she could not assert a “life” or “property” interest, her claim depended on the recognition of a substantive due process right to be with her husband. Justice Scalia concluded that “no such constitutional right” exists. Citing Mandel, Justice Scalia concluded that Berashk has “no cause of action to press in furtherance of his claim for admission.”

Justice Kennedy, joined by Justice Alito, concurred in the judgment. (The Fourth Circuit viewed this concurring opinion as the controlling opinion under the Marks rule). His opinion recognized that “even assuming” Din has a protected liberty interest, the “notice she received regarding her husband’s visa denial satisfied due process.” Kennedy’s opinion stressed that the Court did not decide “whether a citizen has a protected liberty interest in the visa application of her alien spouse.” Beyond this holding, there is a discussion of Mandel. For reasons I explained in this post, Justice Kennedy’s discussion does not support the conclusion that courts can look beyond the four-corners of the consular officer’s denial for bad faith. Justice Kennedy’s oft-cited concurring opinion in Kerry v. Din (2015) stressed that the “facially legitimate and bona fide” test attached to the “consular officer’s” stated reasons for denying a spouse visa to an Afghan national—in other words, the statement of denial. He explained:

Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to look behind the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed. Din, 135 S. Ct. at 2141 (emphasis added).

To stress a point that I did not focus on earlier, the penultimate sentence in Justice Kennedy’s opinion reaffirms the readings of Justice Blackmun, Marshall, and Powell that the “legitimate and bona fide” standard refers to the stated reasons give on the face of the letter, not to subjective purpose:

For these reasons, my conclusion is that the Government satisfied any obligation it might have had to provide Din with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under § 1182(a)(3)(B).

The “bona fide” reason is what the Government provided to Din; not some sort of introspection about the consular officer’s bad faith Both legitimate and bona fide are modified by facially. As Judge Niemeyer explained, “[f]aced with Din’s request for these underlying facts, the Supreme Court declined, instead applying Mandel’s requirement that the plaintiff must show that the government’s reasons were not facially legitimate and not facially bona fide.” (emphasis in original). To that end, what would facial bad faith look like? I offered an example in an earlier post on the Ninth Circuit’s decision in Washington v. Trump:

There is no allegation of a deviation from the policy in bad faith by a rogue consular officer. One could imagine a situation where, under the executive order, a consular official modifies a visa application, such that a Pakistani national is incorrectly listed as an Iranian national, and is thus denied entry. That would be an exercise of bad faith. However, simply denying a visa because of a person’s nationality—an accurate fact—would not be in bad faith under the proclamation issued pursuant to § 1182(f).

But what is true, as Judge Niemeyer explained, is that none of the government’s asserted national security rationales have been “challenged as untrue or illegitimate.” Rather, the majority has concluded that they are simply inadequate.

At bottom, Mandel, Fiallo, and Din support a limited review of the four corners of the government’s case-by-case adjudication. It is unclear if this precedent can even be extended to an executive order that does not, by itself, result in the denial of any visa. Indeed, this misapplication of the precedents affords the Supreme Court an easy way to neatly resolve this issue without touching the difficult constitutional questions: hold that the lower courts improperly extended Mandel beyond a case-by-case denial of visas, and remand for further considerations. Or, the Court could reason that until the visas are actually denied, the claims are not yet ripe for a Mandel challenge. That is, any review is premature until there is an individualized reason given to assess for facial legitimacy and bona fides. (All of these options assume the case is not mooted by the time the Court reviews it; I will discuss this possibility in Part V.)


Donald Trump’s original proposal to ban Muslim immigration was born out of a prejudice that stopping Muslims from entering the United States would protect our security. This ignorant policy is apiece with the medieval notion that building a great wall on the southern border can keep us safe. Indeed, there are strong parallels to the facts at issue in Mandel, where the Attorney General believed that the United States could fight Marxism by stopping a professor’s lectures. These policies represent a flawed worldview, which I profoundly reject (see my conclusion in Part I). Or as Justice Marshall noted in his Mandel dissent, by denying the scholar entry, the United States “Government has departed from the basic traditions of our country.” Much the same can be said about President Trump’s unfortunate and immoral travel ban. However, Justice Marshall was in dissent. Mandel and Din provide our rule of decision in immigration matters, and they require only a facially legitimate and bona fide determination. The President’s executive order is precisely that.

Make no mistake: a similar order directed at Americans abroad would trigger traditional strict scrutiny, and would be unconstitutional. In such a case, the courts would be well-served to apply what Chief Judge Gregory called “normal constitutional tools,” including the consideration of Trump’s statements to establish purpose for the Lemon test. But that is the domestic law. For policies affecting aliens, the Supreme Court has commanded a far narrower review. If the same order would be valid had it been issued by President Obama or Bush, then it must be valid for President Trump.

Far greater than the desirability of any given policy is the rule of law itself, and the consistent application of precedent. As this post illustrates, in granular detail, the lower courts have not been faithful to Mandel or Din. The Supreme Court remains free to change its own precedent, but until that happens, the order survives.

Cross-Posted at Lawfare.