Cross-posted at Just Security.
Not surprisingly, most early reports of the Supreme Court’s decision last Tuesday in Trump v. Hawaii dramatically pronounced that the Supreme Court had declared President Trump’s “Travel Ban III” to be “valid” or “lawful” or “constitutional.” The President himself excitedly tweeted: “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”
Not surprisingly, most early reports of the Supreme Court’s decision last Tuesday in Trump v. Hawaii dramatically pronounced that the Supreme Court had declared President Trump’s “Travel Ban III” to be “valid” or “lawful” or “constitutional.” The President himself excitedly tweeted: “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”
Don’t believe
the hype.
In fact, not a single Justice on the Court
decided—or even suggested—that Proclamation 9645’s exclusion of entry of
nationals from five Muslim-majority countries (Iran, Libya, Somalia, Syria and
Yemen) is lawful. More importantly still,
five of the Justices actually concluded that it violates the First Amendment (although, as I’ll discuss shortly,
Justice Kennedy inexplicably chose to be a bit indirect, and sheepish, about
that conclusion).
But if that’s
the case—if the only five Justices who opined on the merits concluded that the
Travel Ban is unconstitutional—then why did the Court rule for Trump?
Because the
Court applied a highly deferential standard of review. A 5-4 majority of the Justices held, in
effect, that even if the Proclamation is
unconstitutional there’s nothing the Court can do about it.
That
disposition, as I’ll explain, is indefensible on a couple of grounds—(i) that
the Court does not adequately defend its deferential posture and, more
importantly, (ii) that the Travel Ban fails even the “rational basis review” the
Court applied, because its only effect is to exclude entry into the U.S. of
individuals who can demonstrate that they are not dangerous (or otherwise inadmissible). Accordingly, the Travel Ban is “inexplicable
by anything but animus” (slip op. at 33 (quoting Romer v. Evans)), and therefore is unconstitutional.
The majority’s resolution
is especially unfortunate because this is a case in which the Court’s
conclusion—that the President conceivably
might have promulgated the Travel Ban for independent reasons of national
security—is belied by a fundamental thing that virtually everyone knows (and
that the Court does not deny): namely, that the Travel Ban would not exist but
for its foreseeable effect in excluding Muslims from entry, and the fact that
it makes good on the President’s campaign promises to his constituency that
he’d impose a “total and
complete shutdown of Muslims entering the United States” because “we can’t
allow people coming into this country who have this hatred of the United States
. . . [a]nd of people that are not Muslim.”
It’s especially
disappointing that Justice Kennedy went along with this charade, because his
vote to reverse the preliminary injunction—the vote that decided the
case—betrayed each one of the core principles that Jack Goldsmith rightly
describes as the pillars of his jurisprudence over the past 30 years and
his (desired) legacy: honoring the
dignity of all persons; preserving liberty; and enshrining a “robust conception
of judicial power” to check the constitutional errors of political actors. (More on this below.)
Make no mistake,
however: As Justice Kennedy himself unambiguously
signals in his separate opinion, the President is, indeed, “disregard[ing] the
Constitution and the rights it proclaims and protects” (Kennedy op. at 1), and
thereby violating his oath of office, by continuing to enforce the Travel Ban. And those officials who are assisting him in
doing so, or advising him that he may continue to do so despite knowing full
well that there is no national security basis for the ban and that it therefore
is unconstitutional for the reasons
expressed by a majority of the Court in Trump v. Hawaii, are violating
their own oaths, and ignoring the “imperative . . . to adhere to the
Constitution and to its meaning and its promise” (id.). This case thus illustrates an important lesson that's often overlooked: The political branches have a duty to comply with the Constitution even in cases where the Court is, for institutional reasons, unwilling or unable to enforce constitutional norms.
* * * *
I. A Court Majority Rejected the Mythical Plenary
Power Doctrine and Held that the First Amendment Bars Religious Discrimination
in the Admission of Foreign Nationals
Let’s start with a very important and remarkable thing about Trump
v. Hawaii that most reports and observers have, perhaps
understandably, overlooked in the tumult of the past few days: A
majority of the Court rejected, for the first time, the “strong” version of the
so-called “plenary power doctrine” of immigration law, i.e., the proposition that
the political branches are wholly unconstrained by the Constitution in choosing
who can and cannot enter the United States.
This view, according to which the political branches (or
Congress, at least) may even exclude aliens of a particular race or religion
from the United States, is often invoked by lower courts, and has
(unfortunately) become a staple of many law school courses. It even
has support in a Supreme Court dictum from 1903, in the case of Yamataya
v. Fisher: “Congress may exclude aliens of a particular
race from the United States.” The Court pronounced that
dictum, however, more than 50 years before it declared (in Bolling v.
Sharpe (1954)) that the Fifth Amendment prohibits the federal
government from engaging in race discrimination in any context,
foreign or domestic. And until this week, the post-Bolling Court
had never opined on the question of whether the political branches may use race
or religion as a criterion for entry. (As Adam Cox wrote on Just Security last year, “[d]on’t let an immigration or constitutional law scholar
tell you otherwise.”)[1]
It is noteworthy that in the Travel Ban litigation not even the Trump
Administration argued that actual discrimination against Muslims would be
constitutional. Indeed, then-Acting Solicitor General Wall acknowledged,
during oral arguments respecting an earlier iteration of the Travel Ban (see approx.
minutes
29-31), that an actual ban on
entry of Muslims would “run into the . . . constitutional limit on legitimacy,”
even if the President made a finding that such a ban served national security
purposes.
As soon as the Court decided Trump v. Hawaii,
however, some observers assumed that the Court had endorsed the strong plenary
power doctrine under which the political branches’ power to deny entry is
constitutionally unbounded. Eugene
Volokh, for example, wrote that
“the core legal principle behind the majority's constitutional position” was
that the federal government “may pick and choose which foreigners to let into
the country . . ., even based on factors—political beliefs, religion, and
likely race and sex—that would normally be unconstitutional. . . . [T]he government has essentially unlimited
power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights.”
Not so. Indeed, that understanding gets Trump v. Hawaii exactly backwards.
Let’s
start with the Chief Justice’s majority opinion. As I’ll discuss further in Part II below, that
opinion announced the Court’s holding that the judiciary has very “circumscribed”
authority to evaluate whether the
Executive has, in fact, violated the Constitution, and to enjoin such unlawful conduct—what
is sometimes characterized as a weaker form of the “plenary power”
doctrine. What’s more, it’s certainly true that Roberts did not
definitively hold that the First Amendment constrains entry decisions: he merely suggested that the scope and
operation of the Religion Clauses in this foreign affairs context is a
“delicate issue[]” (p.29). On the other hand, the Chief Justice confirmed
the Court’s view, from Kleindienst
v. Mandel (1972), that there are at least some (unspecified)
grounds for exclusion that are not “legitimate”
(p.32), a view that’s impossible to reconcile with the strong version of the plenary
power doctrine. (The implication of the Mandel case itself, for example, was that if
the government had in fact denied Mandel a visa in order to prevent U.S.
audiences from hearing what he had to say, that would not have been a
“legitimate” ground, i.e., it would have been unconstitutional.) Moreover, Roberts himself purported to
distinguish the infamous DeWitt Exclusion Order No. 34 in Korematsu (p.38) primarily on the ground that it rested “solely
and explicitly on the basis of race,” and thus was “objectively unlawful,” whereas Trump’s
Proclamation is “facially neutral.” And he opined that although President
Trump’s statements about Muslims were not determinative of the case, even so
the Court “must consider”
them (p.29). These signals are also
inconsistent with the plenary power doctrine, and they offer reason to believe that even Chief Justice Roberts views
the First Amendment as a constraint on the exercise of the admissions power, at
least to some extent.
However one might read Roberts’s opinion however—and, as explained
above, it’s at worst neutral on the question of whether the
Bill of Rights limits admissions policies—what’s far more significant is that
five Justices not only unequivocally rejected the plenary power doctrine that
the Constitution does not constrain the political branches on questions of
admission, but also concluded, in particular, that the First Amendment’s
prohibition on discrimination on the basis of religious denomination governs
the political branches’ decisions about who to admit into the country.
The four dissenting Justices, of course, would have held that
the plaintiffs were likely to succeed on that theory. (To be
precise: Justice Breyer would have
remanded for further consideration of whether and to what extent the Executive
branch is implementing the Proclamation in a way that would result in disparate
treatment of Muslims. In the final
paragraph of his opinion, however (p.8), he effectively joined Justice
Sotomayor’s opinion because the Court majority had rejected such a remand. And, more to the point, Breyer specifically
wrote (p.1) that “[i]f [the Proclamation’s] promulgation or content was
significantly affected by religious animus against Muslims, it would violate
the relevant statute or the First Amendment itself.”)
And Justice Kennedy makes five.
In his concurrence, Kennedy reasoned that if the Travel Ban were
“‘inexplicable by anything but’ . . . animosity to a religion” it would be unconstitutional,
and even suggested that there might be room for a judicial finding to that
effect on remand (AMK op. at 1). In this regard, he emphasized a
point that’s often difficult to explain to law students trained in the case
method and judicial review—namely, that the lack of judicial authority to check
other actors (or, as here, a very weak variant of judicial review) does not mean
that those actors are free to do what they wish, unburdened by constitutional
constraints—to the contrary:
There are numerous
instances in which the statements and actions of Government officials are not
subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the
Constitution and the rights it proclaims and protects. The oath that
all officials take to adhere to the Constitution is not confined to those spheres
in which the Judiciary can correct or even comment upon what those officials
say or do.
“Indeed,” Justice Kennedy continued, “the very fact that an
official may have broad discretion, [or] discretion free from judicial
scrutiny, makes it all the more imperative for him or her to adhere to the
Constitution and to its meaning and its promise.” [UPDATE: As my former colleagues Alex Aleinikoff and Nina Pillard wrote 20 years ago in a closely analogous immigration context, "institutional limits on judicial review should be irrelevant to the political branches' own constitutional calculus, since they do not share the judiciary's institutional constraints."]
And then there are the final two sentences of his
concurrence—the final sentences Justice Kennedy (presumably) will write as a
sitting Justice—which ought to be seen as the most significant part
of Trump v. Hawaii in the decades to come. In them,
Kennedy announces that the constraints of the Religion Clauses do apply
to the immigration setting at issue, i.e., to decisions about who to admit into
the United States:
It is an urgent necessity
that officials adhere to these constitutional guarantees and mandates in all
their actions, even in the sphere of foreign affairs. An
anxious world must know that our Government remains committed always to the
liberties the Constitution seeks to preserve and protect, so that freedom
extends outward, and lasts.
This is a powerful, unequivocal rejection of what I’ve described
above as the “strong” plenary power doctrine, and a ringing affirmation of the
principle that the United States must not discriminate against people of a
particular religion, "even in the sphere of foreign affairs." Most
importantly, it’s the view of a majority of the Supreme Court . . . at least
until August.
2. The Court’s Misguided Conclusion That the
Travel Ban Satisfies “Rational Basis” Scrutiny
OK, so that’s
the good news.[2] But if the First Amendment prohibits the
political branches from discriminating against Muslims when it comes to
admissions, why didn’t the Court rule for the plaintiffs? After all, it is obvious and virtually
indisputable—the government didn’t even argue otherwise!—that Proclamation 9645 would not exist but for
Donald Trump’s campaign promises to impose a “Muslim Ban,” and but for the fact
that such a ban has a dramatic and foreseeable “disparate impact” on Muslims,
i.e., it keeps out of the United States thousands of Muslims who would
otherwise be permitted to enter.
Indeed, I’d wager that virtually everyone who has been paying any attention to the issue, including all nine
Justices, would agree that those
promises, and those foreseeable effects, were the “but for” causes of the
Proclamation. Notably, not a single
Justice even hints that that might not be true—presumably because such a view
would be so contrary to everything we know that it would appear ridiculous.
And so, if the
case didn’t involve immigration and presidential claims of national security
concerns, or if the Proclamation had discriminated
against Muslims on its face, then the Court plainly would have declared that the Ban was unconstitutional on the ground
that, as Justice Kennedy wrote in Church
of Lukumi Babalu Aye, Inc. v. Hialeah, “the First Amendment forbids an official purpose to
disapprove of a particular religion.” See
Hawaii slip op. at 26 (confirming that the “clearest command” of the
Establishment Clause “is that the
Government cannot favor or disfavor one
religion over another” (quoting Larson v.
Valente)). Indeed, as Justice
Sotomayor stressed in her dissent, just several weeks earlier the Court
prohibited Colorado from enforcing a nondiscrimination order in Masterpiece Cakeshop based upon far less evidence of discriminatory intent
on the part of one or two members of a state commission—evidence that, as I’ve
explained, was probably not hostile to religion at all, let alone to one
particular religion, and, most importantly, that could not possibly have had any impact on the state’s decision-making—in
contrast to President Trump’s promise of a “Muslim ban,” without which it is
inconceivable that the Proclamation would have issued.
Nevertheless, five
members of the Court chose to apply a highly
deferential standard of review to the Ban—as far from the Court’s posture
in Masterpiece as one can imagine. The decision to be so deferential to the
President was based upon a combination of two things: (i) that the Proclamation
“merely” has a disparate impact on Muslims, but does not facially single them out
(thereby distinguishing it from the invalid order in Korematsu, which, according to Roberts, was “objectively” unlawful);
and (ii) that the Proclamation involves questions of entry into the United
States and is ostensibly concerned with national security threats. Where a presidential action has both of those characteristics, the Chief
Justice’s opinion suggests, only a “circumscribed judicial inquiry” is
appropriate.
According to the
Chief Justice (p.32), a form of “rational basis review” is the most a court can (or should) apply in such a
case. Roberts is at first a bit unclear
about which type of “rational basis
review” he means. His citation to Railroad Retirement Board v. Fritz
suggests that perhaps he’s referring to the most lenient form of judicial
review, in which the Court will credit any conceivable
legitimate and rational basis for the challenged state action, even if the
Court is convinced that the actual facts are otherwise. Yet he acknowledges that the Proclamation would
not be constitutional if the government could not point to a “facially
legitimate reason” for it, and thus he quickly clarifies that he’s applying
what’s often referred to as “rational basis with teeth,” in which the Court
will declare an action unconstitutional if “its sheer breadth is so
discontinuous with the reasons offered for it” that it is “inexplicable by
anything but animus” (quoting Romer). (If there were any ambiguity about this,
Justice Kennedy—the fifth vote—unambiguously represents that the Court has applied
the Romer test (AMK op. at 1).)
Roberts states
(p.32) that although the Court can “consider
plaintiffs’ extrinsic evidence” (see also id. at 29 (Court
“must consider” Trump’s statements)), it nonetheless “will uphold the
policy so long as it can reasonably be
understood to result from a justification independent of unconstitutional
grounds.”
One significant
problem with this forgiving standard of review is that Roberts doesn’t offer
any compelling reason why the
Constitution requires such extreme judicial deference in a case, such as this
one, in which the evidence of impermissible motivation is so stark and
compelling. A bit later in the opinion
(p.35), he quotes the old adage that “we cannot substitute our own assessment
for the Executive’s predictive judgments” on matters of national security and
foreign affairs, “all of which ‘are delicate, complex, and involve large
elements of prophecy’” (quoting Chicago
& Southern Air Lines, Inc. v. Waterman S. S. Corp.). Extreme deference on such factual and predictive
questions might make sense in some cases involving foreign affairs; but here,
of course, everyone knows that the President did not, to say the least, make
any such “delicate” or “complex” “predictive judgments”—indeed, as I’ll explain
shortly, he made no judgments about threats from the excluded population, or
other national security threats, at all.
Thus, as Richard
Primus writes, “the rationale to which it [the Court] deferring is not the
rationale that persuaded an expert to act. It’s just a rationale
that the expert’s lawyers figured would sound plausible to non-expert
judges. And the other branch is getting the benefit of deference
because it is in general considered an expert on the topic, whether or not it
is actually applying that expertise in the case at hand.”
Even if there
were a good justification for the Court’s “rational basis” scrutiny, however,
the point I’d like to emphasize here is that Trump’s Travel Ban doesn’t satisfy
even that highly deferential standard of review.
“Because there
is persuasive evidence that the entry suspension has a
legitimate grounding in national security concerns, quite apart from any
religious hostility,” writes Roberts (pp. 33-34), “we must accept that
independent justification.” It’s here
that Roberts make a critical category error.
The pertinent question is not whether the Ban is “ground[ed] in national
security concerns”—we can posit that it’s “grounded” in such concerns, at least
at a very broad level of generality. The
relevant question for purposes of the Romer
inquiry, however, is whether there’s any reason to believe the broad Travel
Ban exclusions of the nationals of the five nations will in any meaningful way address those “concerns,” or whether,
instead, the operation of the Proclamation is “so discontinuous with the reasons offered for it”—with the
facially plausible “national security concerns” invoked on its behalf—that its
promulgation is “inexplicable by anything but animus.”
And the answer
to that question is that there’s no
reason to believe—nor even any presidential “finding”—that the Travel Ban will
prevent dangerous persons from coming into the United States, compared to the
system that was in place before Trump started issuing his executive orders.
Invoking a
finding made by the President in the Proclamation, Chief Justice Roberts
explains (p.34) that whereas the text of the Ban “says nothing about religion,”
“[t]he Proclamation is expressly premised” on “preventing entry of nationals
who cannot be adequately vetted” and inducing other nations to “improve their
practices” to allow the United States to engage in such “adequate” vetting of
their nationals. As I’ve already explained
at great length, however, “inadequate vetting” of the sort the Proclamation
describes, in and of itself, does not create any meaningful national security
problem for the United States for a very basic reason: If the State Department’s vetting of a
particular national of one of the named countries, to ensure that he is not a
terrorist threat or otherwise inadmissible, isn’t “adequate”—because of his
nation’s unwillingness or inability to provide the U.S. with adequate
information or otherwise—then that person is
not permitted to enter the United States.
Pursuant to 8 U.S.C. 1361, an applicant for a visa or for admission has
the burden of proving not only “that he
is eligible to receive such visa or such document,” but also that he “is not
inadmissible under any provision of [the law].”
And if he “fails to establish to the satisfaction of the consular
officer that he is eligible to receive a visa or other document required for
entry, no visa or other document
required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he
establishes to the satisfaction of the Attorney General that he is not
inadmissible under any provision of this chapter.”
Consider, for
example, a case involving exactly the sorts of cooperation inadequacies
identified in the Trump Proclamation: Say, for instance, that a
national of one of the covered countries applies for a visa, makes
application for admission, or otherwise attempts to enter the United States,
and his home country has failed to issue him a passport “embedded with data to
enable confirmation of identity,” or has failed to respond to a U.S. request
for “identity-related information not included in its passports,” or for
information that nation possesses about the alien’s “known or suspected
terrorist and criminal history.” In
such a case, because of the country’s failure or refusal to adequately
cooperate with the United States, the alien will typically not be able to
meet his burden of establishing that he is not inadmissible, and therefore he
will not be allowed to enter. This explains why, even
without the Proclamation, the State Department refused to issue visas for
aliens from the countries in question at far higher rates than for other aliens
(see Cato
amicus brief at 22).
The actual
effect and design of the Proclamation, then, is not, as the presidential
finding and Chief Justice Roberts suggest, to preclude entry of individuals about
whom the Government “lacks sufficient information to assess the
risks they pose to the United States.” To the contrary, its overwhelming, if not exclusive, function,
and effect, is to exclude the many thousands of the nationals of the countries in question for whom
the U.S. government has sufficient information to assess that
they pose no such risks—for example, individuals who because of (very young
or old) age, or disability, or established opposition to terrorism, cannot
reasonably be considered a threat; or individuals who otherwise are able to
provide compelling, reliable evidence that they are not inadmissible, despite
their home country’s failure to do so; or nationals of one of the designated
countries who have for many years been living in a third country in which they
have not demonstrated any grounds for inadmissibility, and who have not
recently visited the designated country of which they are a national.
Chief Justice
Roberts writes that the Court “cannot substitute [its] own assessment for the Executive’s
predictive judgments,” and that the Justices should give “appropriate weight”
to “the Executive’s evaluation of the underlying facts” (p.35). Even if that were the proper posture for the
Court to take, however, the President made no “predictive judgments” here,
based upon a careful “evaluation” of the facts or otherwise, about the risks
posed by nationals of the countries in question, to which the Court should
defer: After the extensive, six-month
interagency assessment, the President did not, in the September Proclamation,
make any findings at all about any new, or unacceptable, risk of terrorism
being committed by the nationals of the countries covered by the
Proclamation. That’s hardly surprising, given that no one from those
countries has killed anyone in a terrorist attack in the United States in over
four decades.
Of even greater
significance, the President's Proclamation also didn’t find, or even suggest,
that the highly reticulated scheme that Congress has enacted to deal with the
problem the Proclamation identifies—the failure or refusal of some countries to
adequately assist U.S. vetting of their nationals—has resulted in any
additional harm, or risk of harm, to the national security.
Chief Justice
Roberts apparently realized strength of this argument, for he addressed it
earlier in his opinion, in connection with the statutory claim (p.16). In response to plaintiffs’ suggestion “that
the entry restrictions are unnecessary because consular officers can simply
deny visas in individual cases when an alien fails to carry his burden of
proving admissibility—for example, by failing to produce certified records
regarding his criminal history,” Roberts’s response was to offer a slightly
different justification for the Ban: “A
critical finding of the Proclamation,” he writes, “is that the failure of
certain countries to provide reliable information prevents the Government from accurately determining whether an alien
is inadmissible or poses a threat. Proclamation
§1(h). . . . [F]raudulent or unreliable documentation may thwart their review in
individual cases” (emphasis added).
The problem with
this clever move, however, is that the President didn’t find that U.S.
officials have been making inaccurate
assessments of admissibility based upon “fraudulent or unreliable”
documentation offered by nationals of the named countries. It’s true that paragraph 1(h) of the
Proclamation, cited by the Chief Justice, notes in passing the obvious point
that “vetting is less reliable when the country from which someone seeks to
emigrate exhibits significant gaps in its identity-management or
information-sharing policies.” Notably,
however, Trump did not find—presumably because the practice and evidence do not
support it—that U.S. officials have allowed persons to enter the U.S. based
upon such “less reliable” vetting. Nor
did the President make any findings that such persons have “fraudulently”
persuaded officials to allow them to enter the United States. Perhaps that explains why the Solicitor
General did not rely upon any argument based on “inaccurate” and “fraudulent”
visa or entry decision-making in either of his briefs to the Court.
This is a case,
then, in which the Court did not so much defer to the “Executive’s predictive
judgments” and “evaluation of the underlying facts” as much as it conjured up
some facts and findings—and problems purportedly addressed by the Travel Ban—of
its own making.
* * * *
In his discussion
of why the Trump Travel Ban is ostensibly distinguishable from the Order at
issue in Korematsu, Chief Justice
Roberts writes (p.38) that “[t]he entry suspension is an act that . . . could have been taken by any other
President.” That statement, I think,
reflects the Court’s fundamental mistake:
The majority appears to believe that the Proclamation itself is a
standard-issue national security measure that “any other President” might have
issued, and that the plaintiffs’ true objective is thus to ask the Court to use
this case to bash Trump and become part of the fictional “judicial resistance”—to
treat him differently than other Presidents because of the ugliness of his
anti-Islam rhetoric. “The issue before
us,” writes the Chief Justice (slip op. at 29), “is not whether to denounce the
statements.”
He’s right about that much.
The significance of the statements is not that they’re a reason or an
occasion for the Court to give Trump his comeuppance (although it’s telling
that Roberts chooses to refrain from even “denounc[ing]” Trump’s systemic
bigotry and hatred[3]). The importance of the statements is, instead,
that they offer an explanation for an executive action that would otherwise
make no sense.
To be sure, the Travel Ban is something that “any other
President” might have issued—if that
“other President” had promised that he’d impose a “total and complete shutdown of Muslims
entering the United States” because “we can’t allow people coming into this
country who have this hatred of the United States . . . [a]nd of people that
are not Muslim.” A President who hadn’t made such a commitment, however,
or who did not otherwise wish to exclude from the United States Muslims who are
not terrorist threats but who the
President presumes to have a visceral “hatred” of our nation—any “other
President,” in other words, who actually cared about preventing terrorism in
the United States—would not have issued
the Proclamation, for such a ban is palpably untailored to addressing that or
any other national security threat.
3. What to Make of
Justice Kennedy’s Vote
So what explains Justice Kennedy’s crucial vote to join the
majority? After all, his separate
opinion isn’t even thinly veiled—he
doesn’t refer to Donald Trump by name, but there’s no hiding the fact that
Kennedy is accusing Trump of “disregard[ing]”
the Constitution (and its “meaning and promise”), and of violating his
oath. Worse than that: Trump is deliberately ignoring “these constitutional
guarantees and mandates” even when there’s “an urgent necessity” that he adhere
to them. There’s no denying that Kennedy
believes Trump is the source of the
world’s “anxi[ety]” and its doubts about whether “our Government remains
committed always to the liberties the Constitution seeks to preserve and
protect, so that freedom extends outward, and lasts.”
As I noted at the top of this post, then, Kennedy’s choice not
to enjoin Trump’s bigoted and unconstitutional conduct betrayed virtually every
one of the laudable principles on which he based his career as a jurist,
including (as Jack Goldsmith
recounts)
honoring the dignity of all
persons and preserving liberty. The Court’s
ruling, even if it is, as I’ve argued, “only” about judicial deference rather
than the merits, emboldens a President who daily scoffs at and degrades the
sort of civility, tolerance and equanimity that Kennedy has long insisted upon,
and who regularly engages in the worst and most conspicuous sorts of religious
discrimination and denigration that Kennedy has long condemned (even when, as
in Masterpiece, it takes a much less
acute, virtually benign form). As
Kennedy’s concluding lament about “[a]n anxious world” suggests, Trump is also
rapidly destroying the world’s faith in the American constitutional order and
traditions, something Kennedy has spent many years trying to cultivate and
preserve. What’s worse, Trump has also displayed nothing but contempt for the independence
of the federal judiciary—including even an attack on the integrity of the first
judge who ruled against one of his travel bans.
Justice Kennedy knows all this, of course, and yet still he deferred.
The most discordant thing about
Kennedy’s choice, however, was that he so meekly accepted the idea that the
Court was powerless to stop what Kennedy himself obviously saw as an overt case
of egregious unconstitutional conduct. As
it happens, Kennedy is right that “[t]here are numerous instances in which the
statements and actions of Government officials are not subject to judicial
scrutiny or intervention.” It’s fairly
shocking, however, to see such a pronouncement in an opinion penned by Anthony
Kennedy. (I can’t recall offhand
anything remotely similar.)
Many things have been written
about Justice Kennedy in the past five days, and there’ll be many more to follow. In reading these tributes and reflections, I
couldn’t help but notice the oddity that thus far almost no one (save Jack
Goldsmith and Ross
Douthat) has emphasized the characteristic that most distinguishes
Kennedy’s tenure on the Court: He is almost surely the most “activist”
Justice in at least the past 80 years, if not much longer. In case after case, across a vast range of
subject areas, he has been not only willing but eager to harshly condemn
governmental actions as inconsistent with his conception of what the
Constitution requires, not only at the local level, but also in cases involving
the federal political branches. Nor has
he been shy about enjoining such actions, no matter how well-established their pedigree. Even if we limit ourselves to cases involving
federal statutes and policies in
which Kennedy himself wrote the majority or a substantive opinion, the list is
impressive; just off the top of my head, his Greatest Hits would include City of Boerne, Alden v. Maine, Windsor, Boumediene, Citizens United, Legal
Services Corp. v. Velazquez, Ashcroft
v. Free Speech Coalition, Zivotofsky,
United Foods, Playboy Entertainment, Alvarez,
Matal v. Tam, Coleman v. Maryland Court of Appeals, Eastern Enterprises v. Apfel, Colorado
Republican Party I, and Clinton v.
City of New York. (Of course he also
joined countless other such decisions, including Shelby County, U.S. v.
Morrison, New York v. U.S., Printz, Eichman, NTEU, Seminole Tribe, Garrett, Florida Prepaid,
College Savings, FEF v. PCAOB, Plaut, Hosanna-Tabor, Reno v. ACLU, U.S. v. Stevens,
Wisconsin Right to Life, Davis v. FEC, McCutcheon, Booker, et
al.)[4]
Anthony Kennedy
was, in short (and both for better and for worse), the ultimate judicial
supremacist—as Douthat puts it, the chief architect of the “judiciary’s
imperial role,” from his landmark decision in City of Boerne v. Flores, excoriating Congress for deigning to
interpret the Constitution differently from how the Court had done so, to his sharply
worded separate opinion in NIFL v.
Becerra—issued just minutes before Trump
v. Hawaii. In NIFL, the same 5-4 Court held that the First Amendment bars a
California statute requiring unlicensed family planning facilities to inform pregnant
women that they are, in fact, unlicensed, and requiring other, licensed
facilities to inform pregnant women where they might obtain comprehensive
family planning and abortion services.
Kennedy was prompted to write separately by a stray, boilerplate
statement by the California legislature that the statute was part of the
State’s legacy of “forward thinking.”
Kennedy reacted to that statement as if it were Orwellian, and decided
to give the State a stern, righteous lecture about constitutional fidelity and
the slow creep to authoritarianism that he saw looming in its modest, well-intentioned
law:
[I]t
is not forward thinking to force individuals to “be an instrument for fostering
public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley
v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the
First Amendment as ratified in 1791; to understand the history of authoritarian
government as the Founders then knew it; to confirm that history since then
shows how relentless authoritarian regimes are in their attempts to stifle free
speech; and to carry those lessons onward as we seek to preserve and teach the necessity
of freedom of speech for the generations to come. Governments must not be allowed to force
persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought
and belief. This law imperils those
liberties.
Contrast that excoriating passage
with Justice Kennedy’s meek, and toothless, plea to the President in Hawaii
to take his oath seriously and to “adhere to the Constitution and to its
meaning and its promise.” As if Donald
Trump, having read Kennedy’s opinion, will suddenly cease his race-baiting, his
Muslim-bashing, and his attacks on the press and the judiciary, and will
henceforth emulate Presidents Washington, Eisenhower and Bush as a beacon “to
the liberties the Constitution seeks to preserve and protect, so that freedom
extends outward, and lasts.”
As his former clerk, Leah Litman,
remarked
last week with some surprise and regret, “[t]he Justice who said and did so
many things that reflected a muscular commitment to judicial supremacy finally
balked.” But why? Why did Justice Kennedy choose this, of all cases—in which the President is so conspicuously and wantonly
“disregard[ing] the Constitution and the rights it proclaims and protects” (Kennedy
op. at 1) and scoffing at the “urgent necessity that officials adhere to these constitutional
guarantees and mandates in all their actions, even in the sphere of foreign
affairs” (id. at 2)—to become a judicial "minimalist," in thrall to the passive virtues, and thereby assist in the Court’s abdication of its responsibility
to ensure that the political branches abide by basic constitutional dictates
such as the prohibition on disfavoring persons of a particular religion? Why be much more deferential to President
Trump here than he was to, e.g., President Bush in Boumediene? [UPDATE: As a careful reader reminds me, however, his record on this score is hardly uniform: There's at least one previous example of Kennedy's reluctance to have the judiciary "venture into foreign affairs management" with respect to the treatment of foreign nationals.]
Is it simply, as Mark Graber argues, that “Kennedy never wavered in his commitments to constructing a constitutional politics that favored the GOP”? (Compare, for example, Kennedy’s visceral disdain for President Obama’s Affordable Care Act, reflected both in his questioning at oral argument in NFIB v. Sebelius and in the extreme, four-Justice opinion he joined in that case.) Did Kennedy suddenly realize the virtues of comity, the day before he announced his retirement? Or is there some other explanation? We may never know for sure.
Is it simply, as Mark Graber argues, that “Kennedy never wavered in his commitments to constructing a constitutional politics that favored the GOP”? (Compare, for example, Kennedy’s visceral disdain for President Obama’s Affordable Care Act, reflected both in his questioning at oral argument in NFIB v. Sebelius and in the extreme, four-Justice opinion he joined in that case.) Did Kennedy suddenly realize the virtues of comity, the day before he announced his retirement? Or is there some other explanation? We may never know for sure.
4. What’s the Upshot with Respect to the
Constitutionality of Proclamation 9645?
I’ve
tried to explain in this post that, far from holding that the Travel Ban is
lawful—something that no Justice of
the Supreme Court concluded—a majority of the Court actually determined that
the First Amendment bar on deliberate discrimination against individuals on the
basis of their religious denomination applies to policies about who may enter
the United States. Furthermore, five
Justices appeared to confirm what virtually everyone knows to be true—namely,
that Proclamation 9645 would not exist but for Donald Trump’s campaign promises
to impose a “Muslim Ban,” and but for the fact that it has a dramatic, foreseeable,
and disparate impact on Muslims seeking to enter the United States. That is to say, the Travel Ban violates the
Constitution.
What
follows? Well, the President, Congress
and other government officials should
take steps to avoid violating the Constitution, notwithstanding the fact that
the Court turned aside the plaintiffs’ challenge to the Travel Ban. [UPDATE: As Professors Aleinikoff and Pillard wrote in 1998, "[i]f the political branches parrot the courts' lenient scrutiny, everyone has deferred to everyone else, and nobody has done the full-fledged constitutional analysis." The Court's deference to the President on questions of the entry of foreign nationals "does not give the political branches a blank check to do as they please, but leaves them with a special responsibility to comply with constitutional norms in view of a diminished judicial backstop."]
Of course, it’d be foolish to think that Donald Trump or the officers he has appointed will now see the light and conform their conduct to what the First Amendment requires. Even so, it’s important to stress that they’d do so if they took their oaths seriously. That’s the basic lesson offered by the example of then-Acting Attorney General Sally Yates in the first two weeks of the Trump Administration: Like a majority of the Supreme Court in Hawaii, she concluded that although Trump’s first Travel Ban may have been facially constitutional, that did not resolve the “best view of what the law is after consideration of all the facts,” including “statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order.” And because Yates evidently concluded that the first Travel Ban was the product of the President’s anti-Muslim promises, she refused to have any part in defending it.
Of course, it’d be foolish to think that Donald Trump or the officers he has appointed will now see the light and conform their conduct to what the First Amendment requires. Even so, it’s important to stress that they’d do so if they took their oaths seriously. That’s the basic lesson offered by the example of then-Acting Attorney General Sally Yates in the first two weeks of the Trump Administration: Like a majority of the Supreme Court in Hawaii, she concluded that although Trump’s first Travel Ban may have been facially constitutional, that did not resolve the “best view of what the law is after consideration of all the facts,” including “statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order.” And because Yates evidently concluded that the first Travel Ban was the product of the President’s anti-Muslim promises, she refused to have any part in defending it.
So, too,
now: Presumably many, if not most, of
the officials who have been involved in the creation or implementation of
Proclamation 9645 know full well that it does not advance any national security
interests and, more to the point, that it would not exist but for the
President’s commitment to impose a “Muslim Ban.” Those officials, in other words, know that
the Ban is unconstitutional[5]—which
should inform their decisions about whether and how to implement it,
notwithstanding Trump’s “victory” in the Supreme Court.
Don’t hold your
breath.
[1] It is
noteworthy that as early as 1957, in a case that challenged race-based
conditions on entry (United States ex rel. Lee Kum Hoy v. Murff), the
Solicitor General acknowledged to the Court—citing Bolling—that “[u]ndoubtedly,
even though the Fifth Amendment has no equal protection clause, grossly
discriminatory legislation or grossly discriminatory administrative action,
especially if predicated on racial grounds, would violate due process”
(emphasis added), and that there is no evidence that any Justice
disagreed. (The Court did not reach the merits of the discrimination
claim in Lee Kum Hoy, concluding that it was unnecessary to do so
in light of the SG’s representation that the blood grouping test requirement at
issue in the case had “been for some time applied without discrimination in
every case, irrespective of race, whenever deemed
necessary.” According to Jack Chin,
Cindy Chiang and Shirley Park, although it is difficult to reconstruct why
the Court acted as it did, there is no record of anyJustice
internally expressing the view that the Constitution allows race discrimination
in admissions.)
[2] And as long as we’re discussing silver
linings, or "when life gives you lemons," or simply taking a cue
from Smokey Robinson .
. . there’s one other salutary development in the case, too. [Warning:
Unless you’re a FedCourts nerd, you can probably safely skip this
footnote.] The Court held that the
individual plaintiffs have Article III standing to challenge the constitutionality
of the Travel Ban, even assuming that (in the government's words) the
Establishment Clause does not "give them a legally protected interest." Their standing is, instead, premised on
concrete harms they suffer by virtue of the way in which the government is
treating other parties: When the government excludes their relatives
from entering the United States, it incidentally
harms the plaintiffs’ “interest in being united with [their] relatives,”
which is, the Court holds, all that Article III requires (pp. 25-26).
This
holding is important because the Court had been deeply reluctant in recent
years to recognize "third party" standing in such circumstances
(i.e., where the third party’s own constitutional rights are not violated),
absent a showing that the “first party” (here, the excluded foreign national) has
a barrier to suing and the third party has a special relationship with that
party making her an apt representative to advance the first party's
rights. I thought that the Court might avoid addressing the merits in the
Travel Ban case by relying on this restrictive doctrine about “jus tertii” standing.
Much to my surprise, however, the Court actually held that the
doctrine is no bar to constitutional standing. The Court assumed arguendo that
the plaintiffs themselves do not suffer any Establishment Clause-related injury
(such as the dignitary harm felt by all Muslims when the state discriminates
against Muslim immigrants, or the harm we all suffer when the state violates
the "structural" protections of the First Amendment), but that nevertheless
the individual plaintiffs' injury in being denied the opportunity to meet with
their relatives—a clear “injury-in-fact”—was sufficient to create Article III
standing even if that injury is not in the “zone of interests” that the Establishment
Clause protects. As far as I’m aware,
the last time the Court issued such a ruling of this kind was in Pierce v. Society of Sisters in 1925, in
which the Court held that private schools could sue to challenge an Oregon law
requiring parents to send their children to public schools, based upon the
economic harm the private schools would suffer due to lowered enrollment. Together
with Pierce, Trump v. Hawaii now stands for the proposition
that the “zone of interests” test for third-party standing is, at most, a test
of “prudential” standing not required by Article III—and that’s especially
important because the Court has begun to question
whether it has the authority to impose such “prudential” limits on jurisdiction
conferred by Congress.
[UPDATE: There's one other thing about the Court's Article III holding that's significant, too, and perhaps counterintuitive to many observers who've been weened on the idea that "foreign nationals seeking admission have no constitutional right to entry" (slip op. at 30): If the "third party" plaintiffs in the case had standing even if Establishment Clause doesn't "give them a legally protected interest," a fortiori the excluded aliens themselves would also be entitled to sue to challenge the legality of their exclusion, regardless of whether they can be said to enjoy any constitutional "rights," for the government is acting directly upon them and they have an even more obvious injury-in-fact than their relatives do--namely, the denial of their opportunity to enter the United States.]
[UPDATE: There's one other thing about the Court's Article III holding that's significant, too, and perhaps counterintuitive to many observers who've been weened on the idea that "foreign nationals seeking admission have no constitutional right to entry" (slip op. at 30): If the "third party" plaintiffs in the case had standing even if Establishment Clause doesn't "give them a legally protected interest," a fortiori the excluded aliens themselves would also be entitled to sue to challenge the legality of their exclusion, regardless of whether they can be said to enjoy any constitutional "rights," for the government is acting directly upon them and they have an even more obvious injury-in-fact than their relatives do--namely, the denial of their opportunity to enter the United States.]
[3] Roberts diverts from his argument
briefly (p.28) to describe how “[o]ur Presidents have frequently used” the
bully pulpit “to espouse the principles of religious freedom and tolerance on
which this Nation was founded,” quoting Washington, Eisenhower and, notably,
George W. Bush after 9/11, when he spoke at the D.C. Islamic Center “to implore
his fellow Americans—Muslims and non-Muslims alike—to remember during their
time of grief that ‘[t]he face of terror is not the true faith of Islam,’ and
that America is ‘a great country because we share the same values of respect
and dignity and human worth.’” Instead
of then simply saying that Donald Trump has debased and betrayed this great
tradition, however, Roberts resorts to euphemism: “Yet it cannot be denied,” he continues,
that
the Federal Government and the Presidents who have carried its laws into effect
have—from the Nation’s earliest days—performed unevenly in living up to those
inspiring words. Plaintiffs argue that
this President’s words strike at fundamental standards of respect and
tolerance, in violation of our constitutional tradition.
“Performed unevenly”? “Plaintiffs argue”?
[4] At the state level the list is probably
even longer, including such major decisions as Obergefell, Lawrence, Romer, Lukumi, Sorrell, Whole Woman’s Health v. Hellerstedt, Planned Parenthood v. Casey, Miller v. Johnson, Rice v.
Cayetano, Granholm v. Heald, Roper v. Simmons, Kennedy v. Louisiana, Hall v. Florida, Peña–Rodriguez, Franchise Tax
Bd. of Cal. v. Hyatt, Packingham, Barnard v. Thorstenn, Kiryas Joel,
and Supreme Court of Virginia v. Friedman.
[5] Howard Wasserman assumes
that “Trump and his aides and officials believe they are adhering to the
Constitution, as they interpret and understand it.” I don’t think there’s any reason to make such
an assumption. After all, in all of its
extensive briefing in the case, the Department of Justice never even asserted that
the Ban was untainted by anti-Muslim purposes, or even that it would have been promulgated
in the absence of such religious discrimination.