Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Constitution and Judicial Credibility: The Fourth Circuit's Travel Ban Ruling
Roger Gregory, Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, starts his recent ruling on President Trump's travel ban with these two questions: 1) is the Constitution (still) "a law for rulers and people equally in war and in peace (citing Ex parte Milligan)?; and 2) if so, does it protect the plaintiffs' right to challenge an Executive Order that "in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination"? Framed this way, it's not difficult to predict the answer--a resounding yes, as set forth in Judge Gregory's 79-page opinion for the en banc court, which ruled 10-3 in International Refugee Assistance Project v. Trump to affirm the nationwide injunction against the ban.
Yet, these questions capture the essence of the Trump administration's defense of the President's revised Executive Order (EO) suspending travel to the United States by nationals from six Muslim-majority nations. (The revised EO was issued in March, revised after multiple courts had blocked the first EO issued in January). The administration argued that courts could not look beyond the four corners of the EO to question the motives underlying it, but instead had to give virtually complete deference to the president's determination regarding the entry of noncitizens into the United States in the exercise of his immigration and national security powers. That meant ignoring the mountain of evidence--including multiple statements by Trump and his close advisors-- that animus, not national security, was the driving force behind the travel ban.
In finding plaintiffs had established a likelihood of success on their Establishment Clause claim, Judge Gregory accepted the Supreme Court's 1972 decision in Kleindienst v. Mandelas the starting point. But Judge Gregory read Mandel, which upheld the denial of a nonimmigrant visa to a Marxist journalist,against the backdrop of other, more recent decisions (e.g., INS v. Chada,INS v. St. Cyr) that indicated the Constitution applies to immigration in more than just name and that federal courts have a meaningful role in enforcing it. Mandel may support substantial deference to the government on visa denials, Judge Gregory found, but that deference is conditioned on the government's provision of a "facially legitimate and bona fide reason." Although the Court found the stated reason (protecting the nation from terrorist activities by foreign nationals) facially legitimate, it determined that plaintiffs had made an affirmative showing of bad faith. Following Justice Kennedy's controlling opinion in Kerry v. Din, the Court then proceeded to look behind the stated reasons. That showing triggered the application of the Lemontest for Establishment Clause challenges, which effectively shifted the frame of analysis from broad federal immigration power to rigorous constitutional norms against religious discrimination. Applying Lemon, Judge Gregory found that a reasonable observer would likely conclude the Order's primary purpose was to exclude individuals from the United States on the basis of their religion, in violation of the Establishment Clause. Three concurring opinions joined the Court's ruling on the Establishment Clause, while finding that the EO also likely violated federal immigration statutes by discriminating based on religion.
What is striking about the Fourth Circuit's decision is how unwilling so many judges were to countenance the Trump administration's efforts to avoid the evidence of religious animus by limiting its review to the face of the Order or removing that evidence from consideration (because, for example, many of Trump's statements were made as a presidential candidate, not as president). Both Judge Gregory's opinion and the concurring opinions all stressed that the Court could not close its eyes to the evidence of invidious discrimination. ("There's none so blind as they that won't see," Judge Gregory wrote, quoting Jonathan Swift). They all understood that to conclude otherwise would make a mockery of judicial review and undermine the Court's credibility.
A Ninth Circuit panel is expected to issue its decision soon in another challenge to the EO. Attorney General Sessions, meanwhile, has announced the government will appeal the Fourth Circuit's ruling to the Supreme Court. But despite the manifest importance of the issues, the court of appeals may be the final stop for this litigation, especially if the Ninth Circuit reaches a similar result as the Fourth Circuit. The travel ban is due to expire on June 14. So unless Trump extends the Executive Order, the Justices may decline to hear a dispute that's moot. And even those Justices who generally favor broad executive powers in matters involving immigration and national security may be less than eager to take a case that stakes those powers on a record that, as Judge Gregory put it, "drips with religious intolerance, animus, and discrimination."