Constitutional Law: UPDATED Blog Post: Chris Gober discusses the 9th Circuit litigation over Trump’s travel ban

* The following is an update to my original blog post discussing the 9th Circuit litigation over President Trump’s controversial Executive Order entitled “PROTECTING THE NATION FROM FOREIGN TERRORISTS ENTRY INTO THE UNITED STATES.” The original blog post, which was written prior to the 9th Circuit’s ruling, also appears below the update.

***
As expected, the 9th Circuit panel affirmed the trial court’s decision to impose the temporary restraining order. Below are some the panel’s key finding and excerpts from the opinion, and a brief summary of where the Trump Administration goes from here.

The 9th Circuit Panel’s Opinion

1. The court held that the States of Washington and Minnesota have standing under the “third party standing” doctrine to assert the rights of the students, scholars, and faculty affected by the travel ban. For example, the States offered declarations describing two visiting scholars who had planned to spend time at Washington State University that were not permitted to enter the United States. The court stated:

The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.

2. The court held that the travel ban violated the due process rights of lawful permanent residents, commonly referred to as green-card holders. As widely reported in Politico and other outlets, this holding was the result of unforced error on the part of the Trump Administration when it rolled out the travel ban. As you might recall, there was considerable confusion during the first 24 hours of the rollout as to whether the travel ban included U.S. permanent residents (i.e., green-card holders). It has even been reported that the Department of Homeland Security immediately opined that the travel ban did not apply to green card holders, but that DHS Secretary John Kelly’s opinion was initially overruled by the White House. By the time White House got on board with the position that the travel ban did not apply to green card holders, more than 100 green-card holders had been detained. Then, rather than having President Trump tweak the Executive Order to clarify the scope of the travel ban, the White House Counsel signed a memorandum purporting to offer “authoritative guidance” that the order did not apply to green-card holders. In short, the 9th Circuit panel ridiculed this position, stating:

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

3. Finally, the court declined to limit the scope of the temporary restraining order, thereby rejecting the Trump Administration’s arguments that Judge Robart’s nationwide order was overbroad in two independent respects: (i) the TRO extends beyond lawful permanent residents, and covers aliens who cannot assert cognizable liberty interests in connection with travelling into and out of the United States (see my discussion of this argument below); and (ii) the TRO applies nationwide, and enjoins application of the Executive Order outside Washington and Minnesota. The court stated:

First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. See Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting) (six Justices declining to adopt a rule that would categorically bar U.S. citizens from asserting cognizable liberty interests in the receipt of visas by alien spouses). There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

Second, we decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy. Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves, but we cannot say that the Government has established that a contrary view is likely to prevail. Moreover, even if limiting the geographic scope of the injunction would be desirable, the Government has not proposed a workable alternative form of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders

So where does the Trump Administration go from here?

In a traditional litigation proceeding, the temporary restraining order would remain in effect during the pendency of the trial court’s ongoing proceeding, or at least while the Trump Administration’s appeal was reconsidered by a 9th Circuit en banc court consisting of 11 of the Circuit’s 29 judges; however, rather than continuing to litigate the constitutionality of the original travel ban, President Trump has announced his intention to sign a new executive order that will “be very much tailored to what [he] consider[s] to be a very bad decision.” Therefore, the salient question is what must President Trump fix so the new travel ban does not suffer the same fate.

First and foremost, the new travel ban will need to explicitly clarify that the travel ban does not impact green-card holders.

Second, in order to address the 9th Circuit’s due process holdings, the new travel ban should be limited to immigrants without a visa who have never entered the United States before. This latter requirement is a point of controversy, as there are many people who believe that the Government should be able to reject entry to someone who has been in the United States illegally, has subsequently left the United States, and is trying to re-enter the United States illegally. Despite what many view as a logical position, such a position would be problematic for the executive order because courts have held that even illegal immigrants have due process rights if they have been on U.S. soil.

Third, since it obviously takes only one federal judge to put the travel ban on hold, it would be advisable for the new travel ban to exclude the section of the original Executive Order that directed the Secretary of State “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” In my original blog post, I discussed the fact that many have argued that the phrase “provided that the religion of the individual is a minority religion in the individual’s country of nationality” violates the Constitution’s Establishment Clause (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .) because it gives preference based upon religion.

Regardless of the changes, rest assured that President Trump’s new travel ban will be challenged in court time and time again…in hopes that the plaintiffs will eventually find a sympathetic judge to issue another temporary restraining order (and it only takes one). However, with the changes summarized below, the Trump Administration will at least have a fighting chance to keep their travel ban in effect. In the meantime, President Trump should be pressing (and praying) for the quick confirmation of Judge Neil Gorsuch, who could be his critical fifth vote on the United States Supreme Court.

***
Original Blog Post

Earlier this week, I appeared on several Fox News programs to explain the current 9th Circuit litigation over President Trump’s controversial Executive Order entitled “PROTECTING THE NATION FROM FOREIGN TERRORISTS ENTRY INTO THE UNITED STATES.” You can watch my Fox and Friends First segment from February 8th.

My goal during these appearances was to provide an unbiased analysis of the most relevant claims, statutes, and precedents at issue in the current litigation, as opposed to arguing in support of, or in opposition to, the travel ban. Frankly, almost all of the analysis I’ve seen on television this week has missed the nuances of the litigation, and instead the analysis is largely driven by results-oriented pejoratives that highlight the speakers’ underlying biases and views on the travel ban itself. I did my best to avoid falling into that trap, and I even declined to directly answer the question: “Is the travel ban constitutional or unconstitutional?” That question may ultimately be answered in the future—likely by the U.S. Supreme Court—but I believe it is a question/answer that misses the point on what should be happening at the 9th Circuit right now and the law that the three-judge panel should be applying.

Since it has been extremely difficult to explain the nuances of the litigation in 15-second soundbites, I wanted to provide EVERYONE—whether you ultimately support or oppose the travel ban—a “roadmap” for how I, as someone who has litigated numerous constitutional cases, views the current 9th Circuit litigation. And I’m sure I will miss the mark, but I’ll do my best to explain it in non-legal, colloquial terms (also, in the spirit of simplicity, I’ll generically refer to Trump’s Executive Order as “the travel ban” below).

1.  As background, it is important to understand that the trial court judge, Judge Robart, issued a nationwide temporary restraining order lifting the ban following a 15-minute telephonic hearing in which little to no evidence was presented. And because Judge Robart issued the order without any substantive legal analysis or explanation as to why he believed the plaintiffs had demonstrated “a likelihood of success” in the case at some point in the future, we as lawyers and non-lawyers alike cannot be 100% sure what aspects of the travel ban that Judge Robart deemed objectionable. As you continue reading, remember these tidbits:

      (a) Nationwide restraining order granted to two states (Washington and Minnesota)

      (b) Little to no evidence presented

      (c) No substantive legal analysis or explanation included in the temporary restraining order

2.  The plaintiffs in this case—the States of Washington and Minnesota—sued the Trump Administration on behalf of their respective State’s citizens and businesses. In short, Washington and Minnesota argue that the travel ban strips them of tax revenue, interferes with their businesses, separated families, and stranded some college faculty and students abroad.

3.  It is critical to keep in mind that anyone can disagree with the travel ban; however, in order to bring a legitimate claim in court, a plaintiff has to have “standing” and the case has to be “ripe.”

     (a) Having “standing” really just means (i) that the plaintiff (here, the States of Washington and Minnesota) have a sufficient connection to the harm caused by the law; (ii) they can prove that they’ll be directly harmed by the law, and (iii) such harm can be avoided or fixed with a favorable ruling from the court.

     (b) Being “ripe” means that the claim is ready to be litigated. Put differently, it means that the claim can’t rest on contingent future events that may not occur as anticipated or events that may not occur at all.

4.   I have to question the States of Washington’s and Minnesota’s standing in this case, at least with respect to the breadth of their standing (more on this below). As I stated above, standing requires plaintiffs to prove that they’ll be directly harmed by the law. Here, while Washington and Minnesota may be able to prove harm to their respective citizens and businesses (for example, a student at the University of Washington may be restricted from traveling out and back into the country), I do not see not see how these plaintiffs can legitimately allege direct harm on behalf of a Syrian refugee with not ties to the states. For example, as compared to the University of Washington student contemplated above, think about the Syrian refugee who: (i) is escaping religious persecution; (ii) has never been lawfully admitted to the U.S.; (iii) has never stepped foot on U.S. soil; (iv) loves the sun and has no interest in residing or visiting either Washington or Minnesota; and (v) would work for a local technology company rather than a Washington- or Minnesota-based company. This refugee simply has no connection to Washington or Minnesota.

       (a) The law also gives states, such as Washington and Minnesota here, a limited right to sue the federal government on behalf of third parties. But, for the sake of argument, let’s assume the States of Washington and Minnesota are able to make a legitimate claim that its citizens and businesses (such as that University of Washington student) are directly harmed by the travel ban. If the plaintiffs successfully demonstrate this type of harm, then the plaintiffs might have standing to challenge the travel ban, but only as it impacts and restrains those State’s respective citizens and businesses. In other words, it makes more sense for the court to lift the travel ban for people like the University of Washington student but reinstate the travel ban for the Syrian refugee with no ties to Washington or Minnesota. This approach would allow the court to address the harm with a scalpel, as opposed to a meat cleaver; however, because of the initial confusion over the scope of the travel ban when it was rolled out (i.e., does or doesn’t the travel ban apply to “green card” holders), this particular court may determine that the Administration’s intentions are so vague that only the meat cleaver will do.

      (b) The States of Washington and Minnesota, in order to challenge the entire travel ban as it relates to all potential immigrants and refugees (e.g., the Syrian refugee with no ties to either state), must provide sufficient evidence as to how they are being directly harmed. This is an important requirement, and I have yet to see the States of Washington and Minnesota present this evidence, and I did not hear those arguments being made during the 9th Circuit’s telephonic hearing on Tuesday. Therefore, without more, I do not understand how Judge Robart or the 9th Circuit can justify allowing the States of Washington and Minnesota to bring a claim on behalf the potential Syrian refugee with no ties to the actual plaintiffs.

      (c) Of course, there may come a time at some point in the near future when another U.S. citizen—for example, a spouse of a potential Syrian refugee—has rights under the U.S. Constitution and may have standing to sue on behalf of his or her refugee spouse. That could occur at some point in the future and may resolve some of the standing issues here; however, my underlying point is, regardless of whether the travel ban is good policy or bad policy, that the States of Washington and Minnesota are not the right plaintiffs to bring this claim because of their lack of standing.

5.  As for ripeness, I view the travel ban as two parts: (i) Part I, currently in effect, which is the ban on travel; and (ii) Part II, which goes into effect in 120 days, that will govern the procedures and preference for how refugees are processed once the ban is lifted. Keep in mind that other presidents, including Obama, have imposed refugee bans that resemble Part I. Rather, it is Part II that is the most controversial and potentially problematic portion of the travel ban, particularly because of the following language in the Executive Order:

Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.

Many have argued that the phrase “provided that the religion of the individual is a minority religion in the individual’s country of nationality” violates the Constitution’s Establishment Clause (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .) because it gives preference based upon religion. Because many refugees are seeking asylum because of religious persecution, there very well may be a valid public policy reason behind this preference; however, for the sake of argument, let’s assume this part of the travel ban (i.e., Part II) is unconstitutional under the Establishment Clause. The fact is, at this point during the 9th Circuit litigation, Part II of the travel ban is not in effect, and it is currently not being employed or used by the U.S. in any way. In fact, at some point during the next 100 or so days, Trump could change his mind about this prioritization or Homeland Security could announce that they are not implementing that prioritization policy because of constitutional concerns. Simply put, the prioritization contemplated in the Executive Order is a “contingent event[] that may not occur as anticipated, or may not occur at all.” Therefore, under the definition of being “ripe,” Part II of the travel ban certainly does not appear to be a claim that is ready to be litigated, at least not until the 120-day ban is lifted and the U.S. government beings processing and prioritizing refuge claims.

Because of this ripeness issue—and regardless of whether the travel ban is good policy or bad policy—I think it is too early in this litigation to claim that the travel ban violates the Establishment Clause, as that particular claim simply is not ripe. What became clear from the February 7th hearing, however, is that Judge Friedland had no problem raising the Establishment Clause as a current and salient issue in the litigation. I expect the 9th Circuit panel to make the case that Trump’s comments about a “Muslim ban” during the presidential campaign should be given strong consideration to determine the underlying intent of the travel ban; however, I question whether this “evidence” alone can convincingly supplant the actual language of the Executive Order and the broad authority of the Commander in Chief to temporarily suspend entry into the United States in the national interest. As mentioned above, recall that the temporary restraining order was issued following a 15-minute telephone hearing in which little to no evidence was presented. Furthermore, even if the plaintiffs did present this evidence and Judge Robart found it convincing, I still question whether the states have sufficiently linked President Trump’s “intent” to demonstrate harm to non-Washington and non-Minnesota citizens and businesses (i.e., getting back to the standing issue discussed above).

6.   Finally, there is an issue of differing statutes—8 U.S.C. § 1182(f) and 8 U.S.C. § 1152(a)(1)(A)—that the 9th Circuit must also consider.

8 U.S.C. § 1182(f):

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

vs.

8 U.S.C. § 1152(a)(1)(A):

[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.

Keep in mind that opponents of the travel ban are quick to point out that the latter statute was enacted 13 years after the former; therefore, they argue that the language “no person shall receive any preference or priority” supersedes the broad authority given to the President in 8 U.S.C. § 1182(f). That argument probably makes a lot of sense to the non-lawyer; however, statutory interpretation is not that simple and requires more than analyzing two statutes’ chronology.

Not infrequently, a conflict arises between the operation of two federal statutes that are silent as to their relationship (e.g., the two statutes at issue here). In such a case, courts will try to harmonize the two so that both can be given effect. A court “must read [two allegedly conflicting] statutes to give effect to each if [it] can do so while preserving their sense and purpose.” Only if provisions of two different federal statutes are “irreconcilably conflicting,” or “if the later act covers the whole subject of the earlier one and is clearly intended as a substitute,” will courts apply the rule that the later of the two prevails. “[R]epeals by implication are not favored, . . . and will not be found unless an intent to repeal is clear and manifest.” And, in fact, the Court rarely finds repeal by implication.

In the current litigation, I think most courts across the country would read these two statutes—8 U.S.C. §§ 1182(f) and 1152(a)(1)(A)—“to give effect to each if [it] can do so while preserving their sense and purpose.” Therefore, I was definitely surprised by how little (or how no) attention was given to 8 U.S.C. § 1882(f) during the hearing. Frankly, it’s as if the judges deem the statutory language to be wholly irrelevant.

Furthermore, because the travel ban (at this particular moment in time) has suspended the entire U.S. Refugee Admissions Program and not just admissions from certain countries with Muslim majorities, there is an argument that the travel ban does not currently give “preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.” Of course, that could change at some point in the future, but it does not change that fact that the U.S. does not currently appear to be giving “preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence” at this very moment. And again, regardless of what you think about the travel ban, what is happening at this particular moment in time is critical to determining both standing and ripeness in a court of law.

Let me be clear: I ultimately don’t expect this particular 9th Circuit panel to employ my standing and ripeness analysis to reinstate the travel ban. Rather, I think this court—particularly the Democrat-appointed judges on the panel—are so diametrically opposed to the travel ban that they will find any avenue to justify keeping the temporary restraining order in effect. That result will occur in one of two ways: (i) most likely, the panel will affirm the trial court’s decision to impose the temporary restraining order and let the trial court proceed to the preliminary injunction phase of the litigation, where additional evidence and briefing will be submitted; or (ii) the panel could punt the case back to the trial court on the basis that it’s too early for the appeals court to review the case, which also means that the trial court will proceed to the preliminary injunction phase of the litigation. Either way, the temporary restraining order will remain in effect during the pendency of the trial court’s ongoing proceeding, and it will be characterized in the media as a loss for the Trump Administration.

One wild card, however, is whether Judge Robart will come to the same conclusion after the parties have submitted evidence and properly briefed the case, thereby giving the judge sufficient time to analyze the issues and read the applicable caselaw. Remember that he issued the temporary restraining order following a 15-minute telephonic hearing, so he was certainly required to “shoot from the hip” with respect to issuing a ruling on the plaintiff’s request for a temporary restraining order. Therefore, as the case proceeds and the temporary restraining order expires, it’s not a foregone that Judge Robart will issue the preliminary injunction enjoining the travel ban during the next phase of the litigation.

This blog post was written by Chris Gober, Managing Partner of The Gober Group. Chris served as legal counsel to Senator Ted Cruz’s presidential campaign and is a trusted legal adviser for the most consequential matters in American politics, including campaigns, constitutional litigation, and government investigations.