Sunday, January 29, 2017

Trump's Refugee Order and The Initial Judicial Resistance

Jonathan Hafetz

Last night’s ruling by a federal district judge in Brooklyn, temporarily blocking enforcement of key portions of President Trump’s order on refugees and other immigrants, is important in several respects. Trump’s order seeks to suspend entry of all refugees to the United States, bar Syrian refugees indefinitely, and block entry into the U.S. of citizens of seven predominantly Muslim countries (based on those countries' purported associations with terrorism). The order’s implementation produced immediate chaos and suffering—with refugees from war torn countries and legal permanent residents returning home trapped in America’s airports—and sparked protests across the country.  Judges in other jurisdictions have also issued rulings blocking parts of Trump's order. (See the E.D. Va. order here, blocking removal of legal permanent residents).  While it is too early to draw firm conclusions, here are a few preliminary thoughts on what these important developments could portend.

In entering the stay, Judge Donnelly found that the petitioners had demonstrated a likelihood of success on their procedural due process and equal protection challenges and faced irreparable harm. (Petitioners also raised statutory and international law arguments).  The order, entered after an emergency hearing on Saturday night to forestall imminent deportations, did not flesh out the court's analysis. But its issuance suggests that the judge was moved at least in part—and properly so—by the discriminatory animus underlying the order. (David Cole has argued why, for this reason, the order also violates the Establishment Clause). This animus appears not only in the order’s text (note its pledge to keep “radical Islamic terrorists” out of the U.S., while never mentioning other terrorists), but also by Trump’s repeated anti-Muslim statements both during the campaign and since taking office, including his express preference for “Christians” seeking asylum over “Muslims.”

The decision provides a few tea leaves for predicting judicial review in a Trump administration. First, Trump’s overreaching—and his refugee order is almost certainly one example of more to come—could provide an impetus for judges to curb doctrinal anomoloies.  In this case, it may embolden otherwise sympathetic judges to chip away at the plenary power doctrine, long criticized as an aberration to prevailing anti-discrimination norms in constitutional jurisprudence. (See Ruthann Robson’s post discussing recent cases where the Supreme Court has suggested it may cast a more critical eye at the doctrine). The refugee order’s combination of manifest bias and arbitrariness—note its senseless targeting of some countries to the exclusion of others (including countries from which the 9/11 attackers came) and its blatant disregard of evidence on the lack of a security risk posed by refugees (see Alex Aleinikoff's post here)—may give judges ground to strengthen those anti-discrimination norms, under whatever standard of scrutiny they ultimately apply. The same goes for the government’s continued assertion of categorical territorial limitations on the Due Process Clause to preclude its application to those stopped at the border-- should, for example, the government continue to detain refugees and others denied entry under Trump’s order without a hearing.

Second, and relatedly, ordinary doctrines of judicial deference will prove vulnerable in the face intemperate and irresponsible action by the executive. Ben Wittes has catalogued the chaos and confusion surrounding the order, which excluded lawyers and other officials in the executive branch with  relevant expertise. For a parallel, look at the trio of Supreme Court defeats suffered by the Bush administration after 9/11 on the detention and treatment of terrorism suspects, which resulted from a disregard for legal rules and which was pushed by an ideological cabal within the administration and excluded top military officials. Put simply, judges will be less likely to defer to knee-jerk extremism from a White House in which Steve Bannon is calling the shots or exercising influence. The Trump administration has already appeared to retreat from one key part of the order--the provision affecting legal permanent residents--but the damage to the administration's credibility has been done.

Third, federal courts will continue to provide a crucial check, not only because of their structural independence, but also because they remain insulated from Trump’s non-fact based world. Unlike in the media, where Trump continues to peddle lies (like the falsehood that millions of undocumented immigrants voted illegally during the presidential election) and muddy the water before the American public, courts still operate in a world of law and facts. That is not to say some judges will not view some issues in a manner favorable to the Trump administration.  But it does mean that, at least unless and until Trump launches a direct assault on the judiciary, there is still one place where Trump will have to provide answers to the reality based world and will be held accountable on that basis.

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