The late Justice Antonin Scalia once compared a constitutional doctrine he disliked to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Donald Trump’s travel ban—and the court challenges to it—also refuse to die.

The first travel ban was an Executive Order (known as “EO-1”) issued on January 27, 2017. It died ignominiously—enjoined by the Ninth Circuit and withdrawn by the White House. Its successor, a second Executive Order (“EO-2”) issued on March 6, was enjoined by both the Fourth and Ninth Circuits. Those two injunctions were narrowed slightly by the Supreme Court—but EO-2 will soon expire completely without receiving full Supreme Court review.

The ban, however, sat up in its coffin again on September 24, 2017, reborn as a proclamation. Last week courts in Hawaii and Maryland both blocked the new version from going into effect.

The Hawaii order—a temporary restraining order issued by District Judge Derrick Watson— may prove evanescent, for complex appellate procedure reasons, the Ninth Circuit case it relies on will probably soon be vacated and the Hawaii case will have to start over. The district court order in the Maryland case, International Refugee Assistance Project v. Trump, may be around a bit longer. Indeed, it is likely the template for Supreme Court review of ban 3.0, so it is worth spending a little time to understand it.

The judge who wrote it, Theodore Chuang, is less than 50 years old, but has an astonishing resume. Born in the U.S. to immigrant parents, he has been a Justice Department lawyer, a federal prosecutor, a Capitol Hill staffer, a big-firm lawyer—and, most significantly, deputy general counsel of the Department of Homeland Security. He is, shall we say, well-schooled in immigration and national-security law.

There are two avenues of attack on the proclamation. One argues that it is illegal under immigration statutes; the other claims it violates the Constitution. The Ninth Circuit read a statute empowering the president as actually limiting him. That section 8 § 1182(f), says that “[w]henever the President finds that the entry of ... any class of aliens into the United States would be detrimental to the interests of the United States,” he can suspend admission of that class for as long as he “shall deem necessary.” The Ninth Circuit held that a president can’t use 8 U.S.C. 1182(f) unless he makes formal “findings” that would satisfy a court. Chuang rejects that argument: “Plaintiffs have not identified, nor has the Court found, any clear limit on the President’s authority under 1182(f) that this proclamation has crossed.”

However, he writes, EO-2 does violate a separate statute regarding admissions of immigrants. That provision, 8 U.S.C. 1152(a), provides that “no person shall ... be discriminated against in the issuance of an immigrant visa because of ... nationality.” Chuang reasoned that the anti-discrimination provision, adopted well after the presidential-exclusion one, should be read as limiting the president’s power over immigrant visas. He can suspend entry of aliens for many reasons, thus, but not on the basis of nationality.

That statutory ruling covers only the admission of immigrants, while the proclamation bars many kinds of visitors. To rule on the rest of the challenge, Chuang had to decide the heart of the case—whether the travel ban, as applied to non-immigrant visas, violates the Constitution’s ban on “an establishment of religion.”

Chuang concluded it does, by sending a message to American Muslims that they and their religion are not full members of the national community. That’s a standard establishment clause test. Chuang based his decision on a 2005 case, McCreary County v. American Civil Liberties Union of Kentucky. In that case, the Supreme Court, 5-4, struck down a Ten Commandments display in a Kentucky courthouse. The county government had altered its display twice after court setbacks, seeking a “secular” context that would be approved. Defending the third try, they argued to the high court that judges should ignore the history of the first two. Justice David Souter, writing for the court, dispatched that claim: “the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence” of the display’s religious purpose.

“Perfectly probative evidence” of improper purpose is hardly lacking in the President’s remarks and tweets—including many recent ones made after the earlier bans were announced.  Among others, Chuang noted that in August 2017—eight months after taking the oath of office and five months after EO-2—“Trump tweeted a statement that ... shooting Muslims with bullets dipped in pig’s blood should be used to deter future terrorism.” Meanwhile, he wrote, “there is no record of public statements showing any change in the President’s intentions relating to a Muslim ban.”

Justice Souter’s McCreary opinion tells courts to “take account of genuine changes in constitutionally significant conditions.” But Chuang found that the purported changes in the proclamation from EO-1 and EO-2 are not “genuinely persuasive.”

After EO-2 was blocked, the administration undertook a security review, supposedly to determine what countries provided adequate supervision of their nationals who were seeking entry into the U.S. But, Chuang concluded, that review was phony. Trump had already announced what it would find, he noted. And the review concluded that what was needed was a ban almost identical to the one in EO-2. Of course, some non-Muslim countries—North Korea and Venezuela—were added, and the new order makes country-by-country exceptions. But the non-Muslim bans have “little practical consequence,” and the country-by-country exceptions don’t make any sense: the review found that Venezuela does not adequately share information with U.S. authorities—but most of its nationals can still enter; Somalia, according to the review, does share adequate information—but its nationals are entirely barred as immigrants, and sharply limited as visitors.

These flaws, Chuang reasoned, call into question whether “national security” was the reason for the ban at all. Chuang wrote that he was not examining whether “national security” would justify a ban. He said he noted the skimpy justification only to “assess whether the Proclamation persuasively establishes that the primary purpose of the travel ban is no longer religious animus.”

Mulling all the circumstantial evidence, Chuang answered that question by finding what Henry David Thoreau once called a trout in the milk:

Based on the facts that the Proclamation’s ban generally resembles President Trump’s earlier description of the Muslim ban, EO-2 dictated the Proclamation’s outcome of a recommended list of nations to be subjected to a travel ban, the criteria used to select countries were highly correlated with those used to select the countries for EO-2, the terms of the Proclamation’s travel ban skew against Muslim nations as compared to the objective measures applied in the DHS Review, and the proposed response has not been adequately explained as a necessary one to the identified problem, the Court cannot conclude that the Proclamation sufficiently offers a “purposeful” curative action that establishes that the taint of EO-2 no longer underlies the travel ban.

Thus, as it heads to the Fourth Circuit, Chuang’s opinion starkly presents the issue: does the establishment clause apply to decisions to admit or exclude aliens? The caselaw on that is confusing. If the clause does apply, when can a court consider what the president has said—and what the government has previously done—to find a violation of the clause in a neutral-sounding order?

Supreme Court tea leaves are notoriously hard to read; but there is a palpable yearning on the part of some of the justices to defer to anything immigration and national-security figures say. Pig’s blood and “Islam hates us” may strain justices’ will to believe, but not necessarily break it.

Whatever the outcome on appeal, however, the opponents of the ban have convinced at least one hard-headed judge that they have a case. His opinion may not survive; but it will not be easy to refute.


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