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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.)

Conclusion

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.

In this post, I will focus on the far more modest concurring opinions of Judges Keenan and Thacker, which were aimed right at the Supreme Court, and the less modest concurring opinion of Judge Wynn. Part IV will analyze the three dissents from Judges Niemeyer, Shedd, and Agee, which were aimed at highlighting for the Supreme Court how their colleagues selectively cited the record and deviated from precedent.

Judge Thacker’s Statutory Argument

Judge Thacker’s concurring opinion (pp. 129-47) parts with the majority opinion on both the constitutional and statutory questions. On the Establishment Clause question, she “would not consider remarks made by candidate Trump before he took his presidential oath of office.” However, limiting her review to “remarks made or sentiments expressed after January 20, 2017,” she would still find a violation of the Establishment Clause. As I indicated in Part I of my series on this case, my view is that Judge Thacker reads certain statements from Trump and his associates out of context and reaches unsupported conclusions about the president’s post-inauguration purpose. I won’t rehash those arguments here. Instead, I’ll focus on the second place where Judge Thacker differs from her colleagues.

The majority opinion declines to reach the statutory question about whether the travel ban violates the Immigration and Nationality Act (INA). In contrast, Judge Thacker “conclude[s] Appellees have demonstrated a likelihood of success on the merits of their argument that Section 2(c), as it applies to immigrant visas, violates 8 U.S.C. § 1152(a)(1)(A)” of the INA (p. 129). This conclusion does not appreciate the important distinction between entry and visa issuance under the statute.

§§ 1152 and 1182

Recall that there are two relevant statutory provisions. The first provision, 8 U.S.C. § 1182(f), gives the president the power to deny or restrict entry to certain classes of aliens “[w]henever 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.”

The second provision, 8 U.S.C. § 1152(a)(1)(A), prohibits the government from discriminating based on nationality (but not religion) with respect to the issuance of immigrant visas. It states that, with exceptions, “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.” 8 U.S.C. § 1152(a)(1)(B) provides that subparagraph (A) does not “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.”

As a threshold matter, Judge Thacker limits her analysis to immigrant visas—properly, in my view, but thereby rejecting the line of argument put forth in parallel litigation by Neal Katyal, who urged the Ninth Circuit to extend § 1152(a)’s prohibition to immigrant visas and non-immigrant visa alike. Under Judge Thacker’s reasoning, § 1152(a) could not provide relief to those seeking non-immigrant visas. For that reason, the statutory argument does not resolve the entire case and the plaintiffs’ constitutional arguments must be considered at least as they apply to non-immigrant visas. In that sense, Judge Thacker’s position, which cannot address the legality of the travel ban as a whole, could still impact other areas of immigration law (pp. 140-49).

The core question is how § 1152 and § 1182 interact. Since the outset of this litigation, I have written that the statutory provisions are not in conflict because they operate based on different areas of immigration law. (See Parts I, II, III, and IV). Section 1182 accords the president broad discretion to bar entry into the United States, and Section 1152, which prohibits nationality-based discrimination, concerns the issuance of immigrant visas. The government reads the statutes in the same way. In fact, Solicitor General Wall explained that this is how the State Department has interpreted these provisions for decades, a position that warrants some degree of deference.

Judge Thacker rejects the government’s construction of these statute. She writes that it is “circular logic” for the government to argue that “when an alien subject to [EO-2] is denied an immigrant visa, he is not suffering discrimination on the basis of nationality of the sort prohibited by Section 1152(a)(1)(A); instead, he is being denied a visa because he has been validly barred from entering the country.” Under this logic, as she sees it, “an alien is barred from entry because he does not have and cannot attain a visa, but he is denied a visa because he is barred from entry.” Thus, she concludes, “the visa issuance and entry concepts are intertwined to the point of indistinguishability.”

Contrary to Judge Thacker’s assertion, the government’s position is not circular. In immigration law, a visa is a necessary but not sufficient condition for entry. This point, that the two statutory provisions deal with “two distinct actions in the context of immigration” and that aliens with a valid visa may still not be allowed to enter, is one that Judge Keenan highlights in her concurring opinion (in the only part not joined by Judge Thacker). As Judge Keenan points out, an alien with a visa could be denied admission “for a variety of reasons set forth elsewhere in the INA.” For example, a person with a valid visa could be denied entry at the airport due to the fact that he has a communicable disease or by providing incorrect information to a federal. Entry and visas are certainly related, but are not “intertwined to the point of indistinguishability.” More importantly, as Judge Keenan notes, Judge Thacker’s analysis has the effect of disregarding the usage of different terms in the “plain language” of the statute itself: “entry” and “visas.”

Assuming that § 1152 controls the travel ban, Judge Thacker adduces two primary reasons why the non-discrimination provision prevails.

First, Judge Thacker asserts that “[r]eading § 1182(f) as bestowing upon the President blanket authority to carry out a suspension of entry, which involves rejecting a particular country’s immigrant visa applications as a matter of course, would effectively nullify the protections in § 1152(a)(1)(A) and create an end-run around its prohibitions against discrimination” (p. 145). But § 1152(a)(1), as a whole, need not be so read. Subparagraph (B) of the provision allows 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. Judge Thacker argued that reading subparagraph (B) in this fashion should render subparagraph (A) a nullity.

In my view, this is incorrect. The general policy is that visas should be issued without concern for nationality. The history of this provision reveals that Congress’s primary concern was to eliminate nationality-based quotas, which were a staple of our immigration law before 1965. But when the Secretary deems it necessary, he can adopt special procedures for issuing visas that take into consideration nationality. Simple examples could include the adoption of different procedures for embassies in certain countries where the risk of fraud is higher. Broader examples could include, as here, the adoption of stronger vetting processes to screen out risks of terrorism. The prohibition is not nearly as strict as subparagraph (A) suggests. In any event, the best way to avoid reading subparagraph (A) as a nullity is to treat “entry” and the issuance of visas as separate concepts. This reading is buttressed by § 1182(f), which gives the Secretary the ultimate trump card: deny entry to classes of aliens, even if they have validly issued visas, based on national security concerns. The greater power to deny entry includes the far lesser power to deny a visa.

Second, Judge Thacker notes that when enacting § 1152 more than a decade after § 1182, Congress intended to curtail the president’s authority under the older provision. But there appears to be nothing in the legislative history of the 1965 INA to suggest that Congress was attempting to restrict the president’s power over denial of entry. In addition, as a matter of experience, Judge Thacker fails to account for historical practice, such as the fact that President Reagan expressly barred Cubans from entering the United States under § 1182. In his Proclamation 5517 (1986), he justified this exclusion on the ground that he “found that the unrestricted entry into the United States as immigrants by Cuban citizens would . . . be detrimental to the interests of the United States.”

Judge Thacker was no doubt aware of the proclamation, as Judge Wynn addresses it in his concurring opinion. Judge Wynn argues in footnote 11, however, that this single action was never reviewed by a court, may be unconstitutional, and is not sufficient to establish a new precedent. While I agree that past practice does not suggest an action is constitutional, presidential custom provides a helpful gloss on our laws and the parameters of executive power. But beyond this gloss, there is another canon of statutory interpretation that bears on the resolution of these questions. Indeed, it is the elephant in the room: Article II.

Inherent Article II Power

President Trump’s denial of entry to nationals of six countries, like President Reagan’s denial of entry to Cubans, is premised not entirely on § 1182 but also on the president’s Article II authority. That invocation of power has implications for how we should interpret the parameters of his power, and the relevant statutory framework.

As I noted in one of my earlier posts on the topic, § 1182 can be viewed as a reaffirmation of the president’s Article II authority to turn away those at the border he deems detrimental to American interests. On this view, the president would not even need statutory authority. Consider if in the immediate aftermath of Pearl Harbor, even before the Declaration of War, President Roosevelt unilaterally halted the entry of Japanese nationals into the United States until Congress could act. Even in the absence of congressional authorization, such a temporary measure would almost certainly be lawful. (FDR had such statutory authority to bar entry to aliens pursuant to his declaration of a “national emergency,” though I suspect this statute was a reaffirmation of what the Commander in Chief would already do in such a scenario).

Here, however, we do not need to worry about unilateral authority in this case, because Congress gave the President. explicit statutory authority. This delegation brings us within Justice Jackson’s first tier of Youngstown. Here, presidential power is at its maximum, and judicial scrutiny is at a minimum. Courts should avoid any construction of § 1152 or § 1182 that intrudes on the president’s authority to deny entry to those he deems dangerous. But there is no need to rely on an avoidance canon, because both statutes are best read to allow the President to deny entry to classes of aliens, an act separate and apart from the issuance of visas.

Note that Judge Wynn directly addresses the argument concerning inherent constitutional authority:

Additionally, because the Executive Order cites the Immigration Act as the sole statutory basis for the President’s authority to proclaim Section 2(c)’s suspension on entry, I need not, and thus do not, take any position on the scope of the President’s delegated power to deny entry to classes of aliens under other statutes. Likewise, because the claim at issue relates only to Section 2(c)’s compliance with the Immigration Act, I do not address whether, and in what circumstances, the President may deny entry to classes of aliens under his inherent powers as commander-in-chief, even absent express congressional authorization. See The Prize Cases, 67 U.S. 635 (1862) (p. 98).

The Obama administration was hesitant to defend their actions based on inherent Article II powers, preferring instead to rely on intricate and multi-factored statutory arguments, aimed at cabining the authority of the Presidency. (See Jack Goldsmith’s commentary about the release of detainees at Guantanamo Bay and the longer-than-sixty-day bombing campaign of Libya). The Trump administration, perhaps like the Bush administration before it, may not be so hesitant. To the extent these statutory arguments prevail on appeal, the government may raise constitutional avoidance arguments.

Along similar lines, Judge Wynn suggests that Congress (and by extension, the president) has greater powers to exclude aliens during times of war. By implication, we are not at war, and such power is therefore lacking. Citing Justice Frankfurter’s concurring opinion in Korematsu (a case that is worlds apart from IRAP v. Trump), Judge Wynn argues that “Congress’s constitutional power to control immigration—and authority to delegate that control—fundamentally differs in a time of war.” He adds, “The Supreme Court’s broadest statements regarding the scope of the president’s delegated powers over immigration—which are relied upon by the Government—are in cases in which Congress expressly declared war and authorized the president to deny entry to aliens as part of his prosecution of the conflict.”

Are we at war? This argument raises the question of whether the 2001 and 2002 Authorizations for Use of Military Force, which both the Obama and Trump administrations have used to fight ISIS, provide support for the president’s terrorism-based travel ban. (To be precise, I do not think either AUMF provides authority to cover conflicts with ISIS). This is yet another reason to read the statues to avoid reaching these thorny constitutional questions. The Supreme Court has shied away from this question, as reflected in its decision to reverse Justice Douglas’s holding in Schlesinger v. Holtzman that the bombing runs in Cambodia were part of an undeclared, unconstitutional war.

Judge Keenan’s Concurring Opinion

Judge Keenan’s concurring opinion (pp. 81-93) proposes a different statutory argument. Unlike Judge Thacker’s reading of the INA, which would provide relief only to those seeking immigrant visas, Judge Keenan’s position would be something of a silver-bullet that wins the case for the challengers without touching on the constitutional question. In short, she argues that President Trump’s proclamation did not make sufficient findings to meet the requirements of Section 1182(f), and thus lacks the authority to deny entry to aliens from the six selected nations.

Recall that the second executive order provides that the unrestricted entry of nationals from the six target countries “would be detrimental to the interests of the United States” and then “direct[s] that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.”

Judge Keenan explains that Trump’s findings are too speculative to meet the stringent requirements of § 1182(f). She writes that “[t]he plain language of Section 1182(f) permits a president to act only if he ‘finds’ that entry of the aliens in question ‘would be detrimental to the interests of the United States’” and that “an unsupported conclusion will not satisfy this “finding” requirement.” Accordingly, she walks through the four corners of the executive order—avoiding any campaign-trail missives—and concludes that the “the Second Executive Order does not state that any nationals of the six identified countries, by virtue of their nationality, intend to commit terrorist acts in the United States or otherwise pose a detriment to the interests of the United States” (p. 88).

Here is her key analytical move: § 1182(f) concerns the exclusion of individuals, not countries. In contrast, President Trump’s executive order focuses on countries, not individuals. Because the executive order “does not identify a basis for concluding that entry of any member of the particular class of aliens, namely, the more than 180 million nationals of the six identified countries, would be detrimental to the interests of the United States,” the order does not meet the requirements of Section 1182(f), the text of which “plainly requires more than vague uncertainty regarding whether their entry might be detrimental to our nation’s interests” (p. 89).

In short, § 1182(f) mandates that the president find 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” (emphasis added). Judge Keenan asserts, and the Solicitor General’s argument does not dispute, that the executive order only concerns aliens that may be detrimental. So the question is: would the Supreme Court halt the travel ban because of the difference between would and may?

This is a very sophisticated textual argument, which I flagged on Lawfare and in the NY Daily News following oral arguments. Critically, it offers the Supreme Court a way to rule against the executive without impairing other government policies—indeed only Presidents Reagan and Trump employed § 1182(f) against nationals of specific country, rather than nationals with offending affiliations. It also avoids reaching difficult constitutional questions concerning the Establishment and Due Process Clauses. (Though constitutional avoidance may caution against such a construction).

Were this a run-of-the-mill statutory interpretation case, I would be inclined to agree with Judge Keenan’s textualist approach. But such is not the case. I think Judge Keenan’s parsimonious construction of § 1182(f) is inconsistent with the loose mode of statutory interpretation employed by the Supreme Court in Dames & Moore v. Regan.

Dames & Moore v. Regan

After the Iran hostage crisis, President Reagan agreed to suspend court proceedings involving Iran and to nullify pending attachments of Iranian property. The Dames & Moore company, which had a valid judgment against Iran, argued that Reagan’s actions were not supported by statutory authority. The opinion by Justice Rehnquist reaffirmed Justice Jackson’s seminal concurring opinion three decades earlier in Youngstown Sheet & Tube Co. v. Sawyer explaining that the president’s powers are their height when he is acting pursuant to congressional authorization and at their “lowest ebb” when acting contravention of congressional will. (Fun fact: Justice Rehnquist clerked for Justice Jackson the year Youngstown was decided; and Chief Justice Roberts clerked for Justice Rehnquist the year Dames & Moore was decided).

In Youngstown, recall that Justice Jackson found that Congress had not given President Truman the statutory authority to seize the steel mills to avert a labor strike. Along similar lines Justice Frankfurter noted in his concurring opinion, that Congress expressly considered granting the president such authority, but withheld it: “By the Labor Management Relations Act of 1947, Congress said to the President, ‘You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation.’”

Under the Youngstown rubric, § 1182(f) is worlds apart from the Labor Management Relations Act of 1947. Here, we have a direct delegation of authority for the president to deny entry to those he deems detrimental to the interests of the United States. Against this backdrop, reading too much into the distinction between may versus would is inconsistent with the framework of cases affecting presidential power and national security. Indeed, as I’ve argued since the outset of this case, the statutory analysis reveals that we are in Jackson’s first tier, and scrutiny must be at a minimum.

But were the inquiry difficult under Youngstown, the task becomes far easier under Justice Rehnquist’s extremely flexible gloss from Dames & Moore. To find the requisite statutory authority to uphold President Reagan’s suspension of claims against Iran, the unanimous Court employed a form of interpretive limbo, reaching to two statutes that bear only indirectly on what President Reagan did: the International Emergency Economic Powers Act (IEEPA) and the Hostage Act. Neither expressly permitted the suspension of claims, but the Court did not find that fact dispositive. Justice Rehnquist deemed “both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case.” He explained:

We think both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. . . . . Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take, or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, “especially . . . in the areas of foreign policy and national security,” imply “congressional disapproval” of action taken by the Executive. Haig v. Agee, ante at 453 U. S. 291. On the contrary, the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to “invite” “measures on independent presidential responsibility,” Youngstown, 343 U.S. at 343 U. S. 637 (Jackson, J., concurring). At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort engaged in by the President. It is to that history which we now turn. (emphasis added)

In contrast, President Trump did precisely what § 1182(f) authorized him to do: deny entry to classes of aliens he deems detrimental. You don’t need to turn to a “looser” approach, or consider “closely related” measures to find that President Trump had the requisite statutory authority to act. Congress said so in the statute with unequivocal language.

For these reasons, I don’t think Judge Keenan’s textual argument will prevail. The Court has never employed such a stringent and rigid approach to construing Congress’s delegations to the president in matters of national security. To the contrary, the Court in Dames & Moore adopted extremely dubious constructions of statutes to find support for executive actions—far more implausible than reading the word “would” in § 1182(f) more permissibly.

Finally, construing § 1182(f) in the narrow fashion Judge Keenan suggests requires reconsideration of two questions addressed earlier. First, President Reagan’s proclamation concerning Cuban nationals made no specific findings about why Cuban nationals “would” be detrimental to the interests of the United States, beyond generalized concerns about “normal migration procedures between the two countries.” To say Trump’s declaration is void is to say Reagan’s declaration was also void. Second, even in the absence of the statute, the president arguably has the power to exclude certain aliens based on Article II and the 2001 and 2002 Authorizations for Use of Military Force. (Again, I disagree with the Obama and Trump administration’s constructions of the AUMF, but they could advance this argument in court). Reading the statute so narrowly would require the Court to broach that issue. Or, the Court can simply read § 1182(f) as Dames & Moore compels, and find the president met the requirements.

Judge Wynn’s Concurring Opinion

I turn last to Judge Wynn’s concurring opinion (pp. 94-128), which sounds in the major question doctrine. He writes, “the Immigration Act provides no indication that Congress intended the ‘broad generalized’ delegation of authority in Section 1182(f) to allow the President ‘to trench . . . heavily on [fundamental] rights’” (p. 96). That is, if Congress had intended to allow the president to encroach on protected classes or classifications, it would have made the delegation explicit. Or, as Justice Scalia noted in MCI v. AT&T, Congress “does not, one might say, hide elephants in mouseholes.”

Under Judge Wynn’s self-styled “delegation of authority cannon,” when a statute does not provide explicit evidence of that delegation and the delegation potentially encroaches on fundamental rights, the delegated powers must be construed narrowly.

The Supreme Court’s 1958 decision in Kent v. Dulles is important to Judge Wynn’s point. As I noted in the Harvard Law Review, long before the articulation of the major question doctrine in cases like MCI v. AT&T and FDA v. Brown & Williamson Tobacco, “the Court recognized [in Kent] that Congress does not cryptically delegate to agencies unbounded discretion to burden constitutional rights.” Judge Wynn’s position parallels the brief I co-authored in the Little Sisters of the Poor case, contending that the Affordable Care Act did not delegate to the executive branch the authority to infringe on religious liberty. Our brief contended that Congress never delegated to the agencies the power to decide which religious organizations receive “exemptions,” and which receive mere “waivers.” As a result, the regulation in question was beyond the departments’ ken.

The theory has gained influence elsewhere. For example, Judge Kavanaugh’s recent dissent from denial of rehearing en banc in the net neutrality case calls for a reinvigoration of what he calls the major rule doctrine. I second that call—though I suspect IRAP v. Trump is not the appropriate case.

Judge Wynn’s approach offers the benefit of avoiding a constitutional ruling; that is, the court could strike down the proclamation as ultra vires, instead of as unconstitutional. But the problem with his approach is that where the challenged action is itself unconstitutional, the major question doctrine adds nothing to the equation. To apply the major question doctrine, the court would still have to reach the question of whether the proclamation is unconstitutional. As he notes on page 106, his analysis requires determining whether “Section 1182(f) would encroach on the core constitutional values set forth in the First, Fifth, and Fourteenth Amendments.” This framework is avoidance in name only. Indeed, the statutory argument in the concurring opinion is indistinguishable from the constitutional argument in the majority opinion, relying on the same sorts of evidence to find animus.

Cross-Posted at Lawfare