A concurrence explains the problems with the Fourth Circuit's analysis of Executive Order 13,780

On Thursday, May 25, 2017, the United States Court of Appeals for the Fourth Circuit issued its long-awaited decision in International Refugee Assistance Project v. Trump. In that decision, the Fourth Circuit reviewed an injunction from the United States District Court for the District of Maryland barring enforcement of section 2(c) of Executive Order 13,780, "Protecting the Nation from Foreign Terrorist Entry Into the United States" (EO-2). The Fourth Circuit affirmed the district court judge's order in part, holding that "the district court erred in issuing an injunction against the President himself," but otherwise leaving the district court's decision enjoining enforcement of that provision intact.

I previously detailed EO-2 in "Loaded Questions and False Assumptions-- The Ninth Circuit reviews the executive order on foreign terrorist entry", but a quick review will help make sense of the Fourth Circuit's decision.

On January 27, 2017, President Trump issued Executive Order 13,769 (EO-1), which was also captioned "Protecting the Nation from Foreign Terrorist Entry into the United States". On February 3, 2017, a federal district court judge in the Western District of Washington issued a temporary restraining order (TRO) that prevented the government from enforcing sections 3(c), 5(a), 5(b), 5(c), and (in part) 5(e) of that executive order. On February 9, 2017, the Ninth Circuit in Washington v. Trump denied the government's motion for an emergency stay of that TRO. The Ninth Circuit denied that motion on due process grounds, holding:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual's ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.

Significantly, the court stated that:

[E]ven if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. ... The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.

On March 6, 2017, in apparent response to this invitation from the Ninth Circuit, the president issued the new executive order, EO-2. As the Fourth Circuit described it, section 2(c) of EO-2:

[R]einstated the ninety-day suspension of entry for nationals from six countries, eliminating Iraq from the list, but retaining Iran, Libya, Somalia, Sudan, Syria, and Yemen (the "Designated Countries"). The President, again invoking 8 U.S.C. § 1182(f) and also citing 8 U.S.C. § 1185(a), declared that the "unrestricted entry" of nationals from these countries "would be detrimental to the interests of the United States." The Second Executive Order, unlike its predecessor, states [in section 1(d)] that nationals from the Designated Countries warrant "additional scrutiny" because "the conditions in these countries present heightened threats." In justifying the selection of the Designated Countries, [section 1(d) of] EO-2 explains, "Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones." The Second Executive Order states [in section 1(f)] that "until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high." The Second Executive Order also provides brief descriptions of the conditions in each of the Designated Countries. It notes [in section 1(e)(iv)], for instance, that "Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas[, and] ... elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country." The Second Executive Order further states [in section 1(h)] that "[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States." [Section 1(h)] provides the following examples: two Iraqi refugees who were convicted of terrorism-related offenses in January 2013, and a naturalized citizen who came to this country as a child refugee from Somalia and who was sentenced for terrorism-related offenses in October 2014. The Second Executive Order does not include any examples of individuals from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the United States. The Second Executive Order clarifies [in section 3(a)] that the suspension of entry applies to foreign nationals who (1) are outside the United States on its effective date of March 16, 2017, (2) do not have a valid visa on that date, and (3) did not have a valid visa on the effective date of EO-1—January 27, 2017. Section 2(c) does not bar entry of lawful permanent residents, dual citizens traveling under a passport issued by a non-banned country, asylees, or refugees already admitted to the United States. The Second Executive Order also includes a provision that permits consular officers, in their discretion, to issue waivers on a case-by-case basis to individuals barred from entering the United States. The Second Executive Order retains some—but not all—of the First Executive Order's refugee provisions. It again suspends [in section 6(a) the United States Refugee Admissions Program (USRAP)] for 120 days and decreases the number of refugee admissions for fiscal year 2017 by more than half, but it does not include the indefinite ban on Syrian refugees. The Second Executive Order also eliminates the provision contained in EO-1 that mandated preferential treatment of religious minorities seeking refugee status. It explains [in section 1(b)(iv)] that this provision "applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion." It further explains [in section 1(b)(iv)] that EO-1 was "not motivated by animus toward any religion," but rather was designed to protect religious minorities.

The Fourth Circuit betrayed its disdain for section 2(c) of EO-2 at the beginning of its opinion, stating:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains "a law for rulers and people, equally in war and in peace." And if so, whether it protects 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. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court's issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

Such prose has its place, but judicial opinions are rarely that place. As then-Judge (now Justice) Neil Gorsuch has previously stated:

As my daughters remind me, donning a robe doesn't make me any smarter. But the robe does mean something — and not just that I can hide coffee stains on my shirt. It serves as a reminder of what's expected of us — what Burke called the "cold neutrality of an impartial judge." It serves, too, as a reminder of the relatively modest station we're meant to occupy in a democratic society. In other places, judges wear scarlet and ermine. Here, we're told to buy our own plain black robes — and I can attest the standard choir outfit at the local uniform supply store is a good deal. Ours is a judiciary of honest black polyester.

Meaning no disrespect to the court, there is little "cold neutrality" in the phrase "drips with religious intolerance, animus, and discrimination."

The plaintiffs in this case asserted that the national security purpose in EO-2 "was given in bad faith . . . as a pretext for what really is an anti-Muslim religious purpose." The Fourth Circuit found:

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump's numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting "territories" instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor's statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.

Based on this, the court then concluded that:

Plaintiffs have more than plausibly alleged that EO-2's stated national security interest was provided in bad faith, as a pretext for its religious purpose. And having concluded that the "facially legitimate" reason proffered by the government is not "bona fide," we no longer defer to that reason and instead may "look behind" EO-2.

"Looking behind" EO-2, the court found, meant applying the so-called Lemon test to determine whether EO-2 violates the Establishment Clause.

The "Establishment Clause" in this context refers to the first provision in the First Amendment to the Constitution, which states: "Congress shall make no law respecting an establishment of religion." As Cornell Law School's Legal Information Institute explains:

This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.

The Lemon test was set forth by the Supreme Court in its decision in Lemon v. Kurtzman. As the Heritage Foundation states, in Lemon:

The Court invented a three-part test to determine whether a statute withstands Establishment Clause judicial scrutiny: (1) whether an act has a "clear secular legislative purpose"; (2) whether its "principal or primary effect . . . neither advances nor inhibits religion" and; (3) whether it fosters "excessive government entanglement with religion."

After reviewing statements of candidate Trump, President Trump, and the president's spokesman and advisors, the Fourth Circuit found "that the reasonable observer would likely conclude that EO-2's primary purpose is to exclude persons from the United States on the basis of their religious beliefs," and therefore concluded "EO-2 likely fails Lemon's purpose prong in violation of the Establishment Clause." Having reached this conclusion, the Fourth Circuit held "the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim."

The three dissenting judges (whose dissent begins on p. 148 of the 205-page order) amply summarize all that is wrong with the majority's opinion. As Judge Niemayer states:

I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court's decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents. The district court's approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis. The majority reworks the district court's analysis by applying Mandel, albeit contrary to its holding, to defer only to the facial legitimacy of the Order but not to its facial bona fides, despite the Mandel Court's holding that "when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests" of the plaintiffs. Mandel, 408 U.S. at 770 (emphasis added). In addition, the majority, after violating Mandel, then adopts the same new rule of law adopted by the district court to consider candidate Trump's campaign statements to find the Executive Order's stated reasons "pretext[ual]," ante at 51, and then to rewrite the Order to find it in violation of the Establishment Clause. This too is unprecedented and unworkable.

One specific portion of one of the concurrences, however, best lays bare the Fourth Circuit's misapprehension of EO-2. In his concurrence, Judge Wynn notes that the president relies on section 212(f) of the Immigration and Nationality Act (INA) as support for his 90-day suspension of entry into the United States by nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, based on his conclusion that the "unrestricted entry" by those nationals "would be detrimental to the interests of the United States." Judge Wynn concludes that reliance on section 212(f) of the INA for this suspension of entry "is inconsistent with [section 212(a)(3)(B) of the INA], which includes 'specific criteria for determining terrorism-related inadmissibility.'"

As Judge Wynn notes, section 212(a)(3)(B) of the INA:

[R]enders inadmissible aliens who have been, are, or may in the future be connected to or engaged in terrorist activity, including aliens who have "engaged in a terrorist activity"; those whom government officials know or have reasonable cause to believe are "likely to engage after entry in any terrorist activity"; those who have "incited terrorist activity"; and those who "endorse[] or espouse[] terrorist activity or persuade[] others to" do so or who "support a terrorist organization." That subsection also provides detailed definitions of "terrorist activity," "terrorist organization," the act of "engag[ing] in terrorist activity," and "representative" of a terrorist organization.

Section 212(f) of the INA, on the other hand states, in pertinent part:

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.

Judge Wynn concludes that:

When, as here, a statute includes "a general authorization [section 212(f) of the INA] and a more limited, specific authorization [section 212(a)(3)(B)] ... side-by-side" that canon requires that "[t]he terms of the specific authorization must be complied with" in order to avoid "the superfluity of a specific provision that is swallowed by the general one." Accordingly, [section 212(a)(3)(B) of the INA], not [section 212(f) of the INA], is the congressionally authorized mechanism for the President to deny entry to aliens whom he concludes are detrimental to the United States because they pose a threat of engaging in terrorist activities.

In reaching this conclusion, Judge Wynn apparently fails to understand that (1) the suspension of entry by aliens pursuant to section 212(f) of the INA under section 2(c) of EO-2 is temporary; and (2) that this temporary suspension is necessary for a specific purpose: To enable "[t]he Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence" under section 2(a) of EO-2 to "conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat," including whether an alien is inadmissible under section 212(a)(3)(B) of the INA.

Plainly, terrorist aliens are barred under section 212(a)(3)(B) of the INA, but although an alien seeking admission bears the burden of proving he or she "is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212" of the INA, the government generally has to adduce some evidence showing that an alien is or may be a terrorist before this burden applies. The difficulty of obtaining reliable evidence of this sort from the six countries listed in section 2(c) of EO-2 is the reason for the 90-day suspension therein. Judge Wynn's own analysis, taken to its logical conclusion, establishes the validity of that provision.

As I have noted elsewhere, "the idea that additional vetting should be applied to aliens from certain countries that are in conflict, or that are failed states" is unexceptional. The Fourth Circuit, in its majority opinion and concurrences, becomes so wrapped up in the rhetoric of the president and his advisors, however, that it fails to see this point.

In Mandel, the Supreme Court held:

[W]hen the Executive exercises [plenary congressional power to make policies and rules for exclusion of aliens] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The same should hold true with First Amendment rights under the Establishment Clause. Section 2(c) of EO-2 is a measured and temporary suspension of entry by nationals of a discrete group of countries for a facially legitimate and bona fide reason, that is, to ensure that appropriate procedures are in place to enable the federal government to properly vet aliens from countries that are state sponsors of terrorism, have been significantly compromised by terrorist organizations, or contain active conflict zones.

Attorney General Jeff Sessions has stated that he will appeal the Fourth Circuit's decision to the Supreme Court. The Court should reverse the Fourth Circuit in International Refugee Assistance Project v. Trump.