Balkinization: One Thought on the Future of the Travel Ban Litigation

Comments:

The Acting Solicitor General said in the Fourth Circuit argument that the DoJ interpreted the Hawaii injunction as prohibiting them from even working on the "enhanced vetting" idea as long as the drafting project dealt only with the six (or seven?) identified countries. Neil Katyal didn't disagree with that interpretation (which strikes me as extreme), but said that the injunction didn't prohibit them from working on an enhanced worldwide system. The DoJ's interpretation emerged, apparently, when it asked the Hawaii district court to clarify the injunction, a motion the plaintiffs opposed. The Hawaii judge simply denied the motion for clarification (as I understand it). I would have thought that the thing to do then would have been to continue to work on the 6/7 country project and invite the plaintiffs to seek a contempt order -- but what do I know?

# posted by

Mark Tushnet : 5:32 PM

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# posted by

Mark Field : 5:32 PM

Beaten to the punch by Prof. Tushnet.

# posted by

Mark Field : 5:33 PM

There is an argument that, until this litigation is resolved, they don't know what sort of immigration policy the courts are prepared to allow. And so, even if they're sure now what they want in place, there's no point in rolling it out to be instantly enjoined.

# posted by

Brett : 5:33 PM

The case cannot possibly be argued until December at the earliest, you would think.

Why? Citizens United was argued in special session, so it's possible to have it sooner than October. Justice Kagan, who argued the case as S.G. might remind them. But, why the need to argue it in December at the earliest?

"delve into presidential campaign statements or what an aide said on cable news"

Note that as I read the analysis, one or two of the concurring judges in the 4CA avoided the "campaign statements" and I gather what some "aide said on cable news" need not be relied upon either. But, regardless, to let the cat out of the bag, the writer of the OP at Concurring Opinions was against using that. Others have taken the other approach, including here: http://www.baltimoresun.com/news/opinion/oped/bs-ed-ban-courts-20170426-story.html

[h/t Kate Shaw, who has a forthcoming article arguing campaign statements can be used in certain cases; she happens to be Chris Hayes' wife, but more relevantly, a law professor]

# posted by

Joe : 5:59 PM

"I would have thought that the thing to do then would have been to continue to work on the 6/7 country project and invite the plaintiffs to seek a contempt order -- but what do I know?"

Wait, you're saying you think they should have engaged in something they expressly understood to be contempt of court? Are you sure of that? They'd have had no defense if they'd have done that, the court could have gone straight to sanctions based on their open admission that what they thought what they were doing was barred by the order.

# posted by

Brett : 8:55 AM

Excuse me, "their open admission that they thought what they were doing was barred by the order." Strikes me as a very bad idea indeed to do as you suggest.

I have several concerns with the application of "animus" here; Animus is not a characteristic of laws or executive orders, it's a characteristic of the people who promulgate them.

They're basically saying, "This order could have passed rational review, but based on who you are, we're not going to engage in rational review."

This isn't striking down the order based on the order itself, but who originated it.

But, if the order might be ok were somebody else President, their problem must be with application, not the order itself; Shouldn't any challenge of this sort then be limited to "as applied" challenges?

Secondly, if you're going to bar Trump, and Trump specifically, from engaging in this sort of policy, based on being Trump, this looks an awful lot like a kind of partial impeachment, depriving him of the powers of the office he could otherwise lawfully exercise.

But, impeachment is specifically reserved to Congress, not the judicial branch. This is over-reach of the highest order, one branch usurping the power of another branch.

The judiciary can tell Trump that he can't do a specific thing, based on reasoning that no President could lawfully do that specific thing. They can't tell him that HE can't do it, though another President could. They aren't entitled to start hacking away at his legitimate powers, only to rule in a general way what the extents of those powers would be if exercised by anybody.

I really don't see this ruling surviving at the Supreme court level, for the reasons above.

# posted by

Brett : 9:08 AM

Brett provides quotes without disclosing of whom. And Brett introduces the strawman of "partial impeachment" as he builds his attempt at legal arguments on his construction of a political bridge to nowhere. Engineer, stick to thy last.

# posted by

Shag from Brookline : 9:29 AM

"Brett provides quotes without disclosing of whom."

I know you're losing it, Shag, but even you should have understood I was just correcting the grammar of the last line of my previous comment.

As for your latter complaint, I try to be more of a renaissance man than that. An actual quote: "A human being should be able to change a diaper, plan an invasion, butcher a hog, conn a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently, die gallantly. Specialization is for insects."

# posted by

Brett : 9:36 AM

Brett, we know facially neutral law can work discriminatory effects. When that's joined with animus is when you've pretty clear discrimination.

# posted by

Mista Whiskas : 9:36 AM

Here's a good example of that kind of thing. Opinion by Rehnquist of all people.

https://en.m.wikipedia.org/wiki/Hunter_v._Underwood

# posted by

Mista Whiskas : 9:39 AM

"Brett, we know facially neutral law can work discriminatory effects."

Yeah, I know that Krogers charging everybody the same price for ground chuck "discriminates" against blacks, because they're on average poorer than whites.

The question is whether the sort of "discrimination" which involves not actually discriminating is any concern of the courts.

# posted by

Brett : 9:54 AM

All laws discriminate in the sense of treating people differently. The kind of discrimination we object to is that which treats certainly categories differently out of prejudice and bigotry. Animus is baked into that idea. Explicitly discriminatory laws are just more obvious, but facially neutral laws can serve animus as we know from history, so it's appropriate to be on the look out for it (or in Trump's case, to not turn a blind eye to it).

# posted by

Mista Whiskas : 10:01 AM

You've shown the point Brett.

If Kroger's charges what it does for business reasons and the effect is that due to different average conditions blacks are less able to buy stuff there, that's unfortunate but not the kind of discrimination we oppose.

But if Kroger's manager has a record of saying 'I wish less blacks shopped here' and then set prices that worked the effect above, wouldn't we rightly be suspicious?

# posted by

Mista Whiskas : 10:04 AM

The "partial impeachment" thing is curious and again is a matter of Brett using words in a way that confuses me. My bad, but just saying.

Using that word, I gather it is sort of a matter of partially stripping him of power. But, the court has determined the order is unconstitutional. Courts "impeach" in this way regularly though again I think the word has more confusion than light. The concern seems to be this is a sort of bill of attainder taint. But, past bad action here does taint. As Justice Thomas noted in U.S. v. Fordice:

"And given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both because the State has created the dispute through its own prior unlawful conduct and because discriminatory intent does tend to persist through time."

The Trump Administration has a heavier burden of proof here, yes, this includes showing a much stronger need of this specific policy. This isn't somehow novel and in this specific context was used in a relevant case involving a religious display deemed illegitimate because of past actions of the locality involved.

The Administration still has the power to make immigration policy etc. As to the merits, the problem to me is on the Administration overall. If Pence suddenly continued the policy, it very well might be tainted. Also, statutory arguments have been made against the policy. If they are used, and some think they are a better approach, animus alone wouldn't even be the point.

# posted by

Joe : 10:13 AM

You're doing the same thing the court did: Refusing to consider the possibility of somebody expressing animus at some point, and then later not acting on it.

Trump said during the campaign that he wanted to entirely shut down Muslim entry into the US. Then, on becoming President, he promulgated a policy which DIDN'T DO THAT. Instead, it focused on a short list of countries which had been identified as problematic by the previous administration.

Were they all Muslim countries? Sure, but Trump can't help that, he didn't originate the list. He just used a list the previous administration had created. He didn't act on the animus!

Like your Kroger's manager who says something awful, and then proceeds to treat every shopper the same anyway.

# posted by

Brett : 10:18 AM

DOJ has every right to work on whatever final policy it wants, and with no contempt risk. That's the way things are done. If you think you are legally in the right and will prevail on final review, you can prepare what you ultimately want to implement, even if it is clearly illegal under the ruling of an inferior court. Then, if your position is vindicated, you can go back to doing what you wanted to do. If your position is not vindicated, all you did was waste effort. The injunction does not stop research and drafting, and if it did it would be overturned. If DOJ is waiting and seeing, that's because it wants to, not because it has to.

# posted by

CJColucci : 10:29 AM

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# posted by

Joe : 10:29 AM

Refusing to consider the possibility of somebody expressing animus at some point, and then later not acting on it.

Can you point out where they "refused to consider"?

The fact they did consider but deemed, taking everything into consideration, that the policy fails the test isn't the same thing.

# posted by

Joe : 10:32 AM

You're begging the question about whether he 'did that' because animus can work through a facially neutral policy to discriminate. Do you really want to argue that Jim Crow politicians who surveyed things like literacy rate differences among blacks and whites and then set up literacy tests for voting, stating all along they hoped it would exclude more black voters than whites, weren't discriminating? After all, everyone was to pass the test!

# posted by

Mista Whiskas : 10:35 AM

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# posted by

Shag from Brookline : 10:42 AM

My 9:29 AM comment was based upon Brett's comments at 8:55 AM and 9:08 AM. Brett at 9:36 AM explains:

"I was just correcting the grammar of the last line of my previous comment."

The last line of his 8:55 AM comment reads:
" ... sanctions based on their open admission that what they thought what they were doing was barred by the order."

Brett's comment at 9:08 AM starts off quoting from the earlier last line without taking the time to so state as well as failing to state that he was correcting grammar. Then Brett goes on at length with his "strawman" of "partial impeachment," respecting which he failed to address in his 9:36 AM response.

As to Brett's claim of being "more of a renaissance man," Brett includes a long quote without referencing whom he is quoting, perhaps himself? In the quote there is no reference to Brett's travails with the legal profession relative to a domestic situation that he commented on in various blogs or his defenses of Bush/Cheney over its 8 years or his colorful vileness of Obama's 8 years. I'd frame Brett more as a "dark ages man" with one foot in Trump-land and the other foot in Duterte-land presumably arising from his self-proclained anarcho libertarianism. But to Brett's credit, he takes care of "grammar."

Now, I'll have to take a peek in the lost and found department, to find what I lost.

# posted by

Shag from Brookline : 10:46 AM

You do know that the Supreme court actually ruled that literacy tests were constitutional, so long as honestly administered? They're banned under Congress' "time, place, and manner" authority, not because they're unconstitutional.

I take the position that discrimination actually requires "discriminating", that is to say, treating similarly situated people differently based on the subject criteria.

# posted by

Brett : 10:50 AM

You didn't answer the question. If a governor actually looked at lower literacy rates for blacks, said 'I'd like to see less black voters' and then instituted a policy of literacy tests, administered equally, you don't think that would be discrimination?

# posted by

Mista Whiskas : 11:04 AM

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# posted by

Joe : 11:09 AM

Literary tests repeatedly were not honestly administrated even though they were facially neutral. This factored in when Congress barred them in certain ways in the Voting Rights Act. This was held to be authorized by the enforcement clauses of the Fourteenth and Fifteenth Amendments. Since, again, the concern was illegitimate discrimination, even if the laws themselves were facially neutral.

Brett fails by his own arguments. Similarly situated people are being treated differently. The court here provided the work there, in part showing alleged neutral national security reasons were suspect. It is easier if we cut thru this and remember that Brett on the merits has argued Muslims should be treated differently. Mr. W. has shown the problems there.

As with other things, the Constitution clashes with his and Sandy Levinson's policy goals. That's fine, but best to be clear about it.

[I'd add that the Supreme Court probably should have struck down literacy tests before Congress statutorily addressed the point. Because, in practice, they were blatantly being used in illegitimate ways. The case Mr. W. cited was decided in the 1980s though. The courts took a while to get to that point.]

# posted by

Joe : 11:14 AM

Let's say there's a locality that has 30% of its voting citizens physically disabled. Voting patterns in the locality largely track disability status. A non-disabled mayor makes a campaign promise to 'shut down these disabled voters' and upon winning enacts a policy that builds new voting places in the locality, but all with no ramps but rather stairs, ostensibly to save money. According to Brett there would be no discrimination here, after all everyone is treated the same and has to use the same entry! This is obtuseness of a rare degree.

# posted by

Mista Whiskas : 11:33 AM

I didn't say they were usually honestly administered. I said they were constitutional if they WERE honestly administered.

That's that difference between being facially unconstitutional, and unconstitutional as applied. It's constitutional to have speed limits. It's not constitutional to pretend the black drivers are speeding when they're actually complying with the limits.

And even if it could be shown that blacks habitually speed, that wouldn't make an honestly administered speed limit "discriminatory".

It may well be that Trump's EO could be shown to be unconstitutional as applied. But the idea that he picked those countries out of "animus", when the list was simply adopted from the prior administration, doesn't pass the smell test, IMO.

# posted by

Brett : 11:36 AM

"According to Brett there would be no discrimination here, after all everyone is treated the same and has to use the same entry!"

According to Brett this would likely violate one or more statutes, but, no, it wouldn't "discriminate" against the handicapped. It would be treating them exactly the same as the able bodied. It's just that society has decided not discriminating against the handicapped isn't good enough.

# posted by

Brett : 11:41 AM

You still didn't answer my question.

And your smell test is easily passed.

Let's say a sheriff identified high crime neighborhoods to target DARE programs in the schools there.

Later, a candidate for sheriff says 'we need to get black people in this town back in line, make them fear the authorities again!'

The candidate wins. He tells his deputy 'get me anything we have that would justify us targeting raids, traffic stops and stop and frisks in black neighborhoods'

The deputy pours through past studies and cross references them with census demographic data. He finds that all of the high crime neighborhoods in the previous sheriff's report are mostly black. The next day the sheriff announced a policy of targeting those techniques in that neighborhood. You'd have to be obtuse not to see that the sheriff is very likely engaging in the effort to follow his discriminatory campaign pledge.

# posted by

Mista Whiskas : 11:47 AM

"no, it wouldn't "discriminate" against the handicapped."

Holy shit that is crazy and morally obtuse.

# posted by

Mista Whiskas : 11:48 AM

Think about how far out that is. The policy could literally have the intent AND effect of barring EVERY disabled voter while providing no obstacle at all for ANY non disabled voter and Brett would still declare it not discrimination. That's a frightening level of literal obtuseness.

# posted by

Mista Whiskas : 11:52 AM

"the list was simply adopted from the prior administration"

Polti-fact ranks a comparable defense as "half-true"

http://www.politifact.com/wisconsin/statements/2017/feb/07/reince-priebus/were-7-nations-identified-donald-trumps-travel-ban/

There are various differences:

http://foreignpolicy.com/2017/01/30/sorry-mr-president-the-obama-administration-did-nothing-similar-to-your-immigration-ban/

Others have also addressed this point, so just cite that as informative. Illegitimate discrimination repeatedly involves false equivalences. It involves taking everything as a whole, not citing one thing a former party did, a thing that is different from the matter at hand in various respects anyway.

# posted by

Joe : 12:04 PM

It's such a monstrous outlook that the morally counterintuitive examples just roll in.

Imagine a town of ten families. Four families are black, and they are servants for four of the white families. In an election, the four white families vote for X for mayor and the swing white family does too, the four black families vote for Y. X tells the four white family employers 'I call for shutting down these black voters!' The four employer white families go to X and tell him how much the black families make in their employ. Based on this, the mayor sets a poll tax at a rate he surmises the black families cannot pay but the white families can. The effect is that only the five white families can vote, and even though the swung white family doesn't like it, they're outvoted regularly four to one.

According to Brett, nothing discriminatory has happened here at all!

# posted by

Mista Whiskas : 12:07 PM

"He finds that all of the high crime neighborhoods in the previous sheriff's report are mostly black. The next day the sheriff announced a policy of targeting those techniques in that neighborhood."

What freak do you expect him to do, target crime prevention efforts in neighborhoods that DON'T have a crime problem? What sense would that make? You're setting up a situation where the only way he can prove himself innocent is to pursue an irrational policy!

It is a perfect analogy, though. What's going on here is that we're being told that we're not allowed to rationally respond to a real problem, because it happens to correlate with some characteristic we're not supposed to discriminate on the basis of. And even noticing the correlation, and not pretending it isn't there, is enough to get you labeled as possessing "animus", which apparently prohibits you from exercising otherwise lawful authority to lawful ends.

The problem is, it's a real problem, and it needs to be dealt with. And your obsession with even the appearance of discrimination is getting in the way of any rational response. You're setting up a system which is guaranteed to fail, where succeeding is important.

By linking necessary actions to solve a real problem to discrimination, you're going to ultimately cause people to stop carrying about even real invidious discrimination, because the problem IS real, and DOES need to be solved.

How many bad cases of Islamic terrorism do you think have to happen, before, having tied effective action to discrimination, the public decides maybe discrimination IS the way to go? You're setting up a very ugly dynamic here.

# posted by

Brett : 12:15 PM

"Based on this, the mayor sets a poll tax at a rate he surmises the black families cannot pay but the white families can."

And, poll taxes, unlike literacy tests, actually are unconstitutional. So you had to reach for something that was explicitly unconstitutional to make your case.

# posted by

Brett : 12:17 PM

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# posted by

Joe : 12:18 PM

Anyway, quick lesson:
How to leave a link in a blogger comment.

# posted by

Brett : 12:23 PM

"And, poll taxes, unlike literacy tests, actually are unconstitutional. So you had to reach for something that was explicitly unconstitutional to make your case."

The 24A explicitly only applies to federal elections. It is true, if only in the mid-1960s, the Supreme Court did hold they were unconstitutional across the board. It didn't do so because of racial discrimination specifically.

"wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned"

Harper v. Virginia Bd. of Elections.

Mr. W. used the poll tax example to make a case for racial discrimination. Brett says "well the poll tax is bad anyhow." Seems to be talking past each other.

# posted by

Joe : 12:27 PM

By the way, typical Politifact; Finding a way to label less than true something that's actually correct, by leaning very heavily on some minor point.

"The travel part of Trump’s order does target the same seven countries that were singled out with a law Obama signed in December 2015."

That's 100% true, not 50%. It was a list compiled by Obama, and that's the key point.

# posted by

Brett : 12:27 PM

(btw, realize how to insert links, but it's tedious since there is no button for it)

# posted by

Joe : 12:28 PM

That's 100% true, not 50%. It was a list compiled by Obama, and that's the key point.

False equivalences repeatedly cite alleged "key" points.

Obama didn't formulate said "list" the same way and it didn't reach the same things. These are rather relevant points along with other things to determine if the specific policy, not another one which is some way the same, is problematic.

Anyway, I cited but two discussions. So if one doesn't like PolitiFact, one doesn't have to go there.

# posted by

Joe : 12:31 PM

Actually, reading the 24th Amendment more closely, it isn't even for all federal elections.

"The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax."

Three justices dissented to the opinion that broadly applied such a ban and on the merits, an originalist might agree with them.

# posted by

Joe : 12:36 PM

I'm pretty sure that actually is an exhaustive list of all federal elections. Unless maybe you mean the local elections in D.C.

# posted by

Brett : 12:40 PM

It's quite possible for some other "federal" election to take place that doesn't involve those people. Congress, e.g., might determine that such and such (let's say the price of stamps) were determined by some sort of referendum.

And, yes, local elections in D.C., Puerto Rico etc. I'll grant, though a stickler might not, "Representative" applies to non-voting delegates from such areas. Finally, there are American nationals who are not "U.S. citizens" in American Samoa.

The phrasing is unduly narrow.

# posted by

Joe : 1:06 PM

I expect the sheriff to choose targets based on criteria on crime not race and for his intent to be to combat crime not put blacks in their place. You seem to have no qualms about a sheriff, or President, who chooses policy X because it targets a race or religion and intended to harm that race or religion as long as X could be said to have other effects and intents.

And yes, Joe got the poll tax reference and you did not. You've said the literacy test or non accommodating voting buildings are not discriminatory are fine because the treat everyone the same. Well in my hypo the poll tax was the same for everyone...

# posted by

Mista Whiskas : 1:09 PM

I still don't understand why campaign statements as indicators of motive are at all problematic. Aren't campaign speeches specifically for the purpose of illuminating what the candidate intends to do as officeholder, and why? What could be more germane to the issue of motive than that? Have we reached such a level of cynicism that even in a legal sense, campaign statements and promises are completely meaningless?

# posted by

MGould : 1:56 PM

"Well in my hypo the poll tax was the same for everyone..."

Yeah, but it's equally a violation for everyone, and so can't be said to be "discriminatory"; It would be unconstitutional to assess a $5 tax for a poor man to vote, but it would be equally unconstitutional to assess a $5 tax for a wealthy man to vote. You just can't do it, period.

Whereas literacy tests were constitutional, so the only constitutional issue was whether you were actually testing literacy, or just pretending to do so as a cover for racially discriminating.

"I still don't understand why campaign statements as indicators of motive are at all problematic."

Because you have to allow for the possibility of somebody changing their motive.

# posted by

Brett : 2:16 PM

Brett's response to MGould:

"Because you have to allow for the possibility of somebody changing their motive."

fails to address not changing motive.

# posted by

Shag from Brookline : 4:21 PM

Shag's reply is apt.

Again, it hasn't been shown that the opinion along with other analysis that is supportive of it didn't factor everything into the equation. No ONE thing alone should be taken in a vacuum here, at least something like a campaign statement.

The concern is that such statements might be misleading, puffery or something else. Also, that using them will inhibit freedom of speech. But, speech is used to determine illegitimate motive in various contexts. That proves too much.

Have a nice holiday weekend.

# posted by

Joe : 5:08 PM

Why do you think they made poll taxes unconstitutional? You don't think that they realized that not everyone is similarly situated to pay it? Just like not everyone is similarly situated to climb steps or pass a literacy test?

# posted by

Mista Whiskas : 5:24 PM

"you have to allow for the possibility of somebody changing their motive."

Sure, but if they've said they want to do X for Y reason over and over and then they do X or something in line with it and it sure fits with the old reason I think common sense tells you the presumption is against them. By all means let them offer evidence to overcome that, but let's not jettison common sense from our con law any more than we've done already!

# posted by

Mista Whiskas : 5:28 PM

Don't forget that Rudy Giuliani is part of the chain of evidence that the motive did not change. [I imagine The Donald sitting on his gold throne singing the parody of "Prisoner of Love" "Alone from time to time you'll find me, To weak to pull the chain behind me, I'm just a prisoner of ....."] Nixon never got rid of those tapes.]

# posted by

Shag from Brookline : 7:38 PM

BREAKING NEWS: A Kushy job might just get uncomfortable.

# posted by

Shag from Brookline : 10:33 PM

Check out "The Simpsons" [no, not Donald, Jr., and Eric, silly] at:

http://www.huffingtonpost.com/entry/the-simpsons-donald-trump-nixon-ghost_us_592919c1e4b0065b20b6c82c?6rw&ncid=inblnkushpmg00000009

on Trump/Comey - intertwined with the ghost of Nixon. [Unfortunately, Brett will not have the benefit of subtitling.]

# posted by

Shag from Brookline : 8:21 AM