Based on his research on comparative constitutional law, Professor Ian Cram (Leeds) gives here an analysis of the travel ban orders issued by President Trump. His analysis charters some of the constitutional arguments that may make their way to the US Supreme Court in the future.
Introduction
A serious criticism of the US Courts during periods of emergency is that they have failed in those times to question Executive assertions of crisis and threats to national security. Only when the moment of crisis has passed, did they revert to a more robust standard of constitutional review.[1] Supporting evidence for this criticism is to be found in judicial approval of executive orders in cases such as Korematsu involving the removal and detention of 120,000 US-Japanese persons in 1942[2] and ex parte Milligan (1866) when President Lincoln suspended the writ of habeas corpus during the Civil War.[3] For constitutional liberties to be properly safeguarded, the federal courts needed to develop a more robust jurisprudence during the crisis itself. A prolonged period of threat such as the current ‘war on terror’ would seem therefore to offer the courts an opportunity to build and develop a measure of resilience in the face of predictable claims from the political branches for a downward recalibration of core rights and freedoms. In recent months, President Trump’s Executive Orders (EOs) banning entry into the US have come under judicial scrutiny. The purpose of this blog is to shed some light on judicial responses both to the original EO and its successor. The analysis offered below is necessarily of an interim nature and incomplete. Litigation concerning the revised EO that is currently before various Circuit Courts of Appeal is likely to end up in the US Supreme Court. What follows is intended to give a flavour of some of the main constitutional arguments to feature in selected litigation.
Executive Orders – what are they?
Although the US Constitution contains no explicit reference to EOs, they have long been used by the President and the Executive branch to ensure/direct the implementation of policy. To be lawful an EO has to be within the powers explicitly or implicitly conferred by the Constitution on the President (in Article 2 of the Constitution). Statute law can also provide the basis for lawful EOs, authorising the President to secure the implementation of a statutory policy objective. To get a sense of how common EOs are, it is instructive to note that President Obama issued 277 orders during his 8 years in office. In equivalent two-term periods Obama’s predecessors George W Bush and Bill Clinton issued 291 and 364 EOs respectively. Though used at times to curtail basic constitutional freedoms, EOs have also marked more progressive policy initiatives. President Lincoln famously issued his Emancipation Proclamation on Jan 1, 1863 to declare that slaves held in the rebel southern states would henceforth live as free citizens.
Original EO – Jan 27 2017 Executive Order 13769 ‘Protecting the Nation from Foreign Terrorist Entry into the United States’
EO 13769 issued in January this year (i) banned entry to the US for 90 days for non-US citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen; (ii) suspended for 120 days the refugee admissions programme and then on resumption priority to be given to refugees from religious minorities; (iii) indefinite suspension of Syrian refugees admissions programme.
The states of Washington and Minnesota asked the federal courts to declare that sections of the Order were unconstitutional and to enjoin their enforcement nationwide via a temporary restraining order (TRO). The plaintiffs argued that the Order violated the First and Fifth Amendments as well as US statutes including the Foreign Affairs Reform and Restructuring Act and the Religious Freedom Restoration Act. Washington claimed that the Order was not in truth intended to protect against terror attacks committed by foreigners. Rather, it was intended to ban the entry of Muslim nationals (as President Trump had said he would during the 2016 presidential campaign). In the District Court, a temporary restraining order was issued preventing the enforcement of the EO. After initial defeat in the District Court, the Trump Administration appealed to the 9th Circuit of Appeals.[4] The court held that at the outset that the States had standing to challenge the EO. The teaching and research missions of state-owned universities were being adversely affected by the Order. Some students and members of Faculty were stranded outside the US and unable to return to their jobs/courses. In the future, the universities would be hampered in their ability to recruit students and staff from the seven listed countries. In a separate submission to head off any substantive consideration of the constitutionality of the EO, Government lawyers further argued that the President enjoyed an ‘unreviewable authority to suspend the admission of any class of aliens’ where national security considerations underpinned the admission decision. The 9th Circuit rejected this argument, citing Boumediene v Bush 553 US 723, 765 (2008) where a majority of the Supreme Court held that, even when backed by a Congressional statute passed during an ongoing threat to national security the political branches could not switch the Constitution ‘on or off at will’. The Courts still had a role to play. Boumediene showed that where Congress had passed a law to deprive the federal courts of jurisdiction to hear habeas corpus claims (via the creation of a separate system of military commissions to try Guantanamo detainees), the courts could still enquire into whether the procedures of the newly created military commissions provided an adequate and effective substitute for habeas corpus as required by the Suspension Clause in Art 1 s.9 cl 2 of the Constitution.
On the substance of the plaintiffs’ claims, the 9th Circuit agreed that the EO breached (i) the Fifth Amendment due process rights of individuals to be given both notice of a proposed deprivation of liberty and an opportunity to respond to that proposed action; and (ii) the prohibition in the First & Fourteenth Amendment’s respective prohibitions on discrimination on religious grounds. The Government is not permitted under the First 
Amendment to favour/disfavour one religion over another since this signals that the disfavoured groups are not being treated as full and equal members of the political community. Under the Fourteenth Amendment, states must not deny any person the equal protection of the laws. Usually invoked against government discrimination on grounds of race or gender, the successful deployment of Fourteenth Amendment arguments here against religious discrimination is significant. Washington and Minnesota had provided ample evidence from the 2015-16 campaign trail of President Trump of his intention to implement a Muslim ban. It followed that there were sufficient grounds in these preliminary hearings to grant a TRO enjoining the Trump Administration from enforcing Executive Order until fuller arguments had been heard.
Response of the Trump Administration to 9th Circuit’s TRO – Revised EO 13780
In response, the Trump Administration produced a revised and narrower Executive Order that was said to meet the concerns of the 9th Circuit Court of Appeals. The revised EO which came into effect on March 16, 2017 took Iraq off the listed countries on account of what the Trump administration said was enhanced levels of security co-operation between Iraqi authorities and the US. The remaining countries were either ‘state sponsors’ of terrorism (Iran, Sudan and Syria) or have been significantly compromised by terrorist organisations or contain active terrorist zones. The blanket ban on Syrian refugees was removed. Lawful US residents were also allowed to fly into the US from the listed countries. Moreover, the refugee programme’s religious preference for those professing a minority faith was discarded. Setting out a more explicit national security foundation for the revised EO, a ‘Policy & Purpose’ section provided detail on the threats to US security interests threats in each of the named countries.
Challenges to the revised EO were immediately filed in the US District Courts of Hawaii[5], Maryland[6] and Virginia[7] and significantly produced contrasting outcomes. Two of the challenges (Hawaii and Maryland) resulted in TROs being granted against the revised EO whilst the US District Court in Virginia upheld its constitutionality. Both the Maryland and Virginia District Court rulings are currently before the Fourth Circuit Court of Appeals and the remainder of this blog focuses on these opposing rulings to gain a clearer sense of contrasting judicial approaches.
TRO granted against revised order – Int’l Refugee Assistance Project & ors v. Donald J Trump (Maryland)
Notwithstanding the absence of expressly discriminatory terms favouring non-Muslims in revised EO 13780, the plaintiffs alleged that the new order maintained in practice an impermissible governmental preference on religious grounds contrary to the First Amendment’s Establishment Clause’s demand for official neutrality. To avoid a successful challenge, the government had to show that (i) the impugned policy had a secular purpose; ii) its principal effect was other than to advance/inhibit religion; and iii) the policy didn’t foster an excessive entanglement with religion. (Lemon v Kurtzman 403 US 602 (1971))
The plaintiffs argued that EO 13780 failed the ‘secular purpose’ or first element of Lemon. In support, they cited election statements made by the President during the campaign trail on his website. One statement issued on December 7, 2015 entitled ‘Statement on Preventing Muslim Immigration’ called for ‘a total and complete shutdown of Muslims entering the United States until our representatives can figure what is going on.’ Further evidence was presented to the Maryland District Court that, after the First Executive Order was issued, former New York Mayor Guiliani (a close adviser of the Trump campaign) had stated on Fox News that Trump had asked Guiliani about the legal way to institute a Muslim ban. In its ruling the Maryland District Court said that these amounted to, ‘clear statements of religious purpose’ in violation of the secular purpose element of Lemon. As for the Revised EO, the Court held that
the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.
The Government’s unsuccessful argument was that the Revised EO should be taken at face value, being based on national security concerns and lacking any phrase that could reasonably be characterised as having a religious origin or connotation. For the Maryland Court, such facial neutrality in terms of religion could not be dispositive. The primary purpose of the Second Order (as with the First) was a religious purpose, contrary to the Establishment Clause. National security considerations appeared at best to be secondary post hoc considerations.
TRO against Revised EO refused – Council for American Islamic Relations v Trump (Virginia) March 24, 2017
As in Int’l Refugee Assistance Project & ors v. Donald J Trump argument focused on whether, despite being facially neutral, the revised EO in fact had a religious purpose. Judge Trenga ruled that the District Court was entitled to look behind the express terms of the Order at published statements of President and his advisors to see whether the stated purpose was a sham.
Whilst the original EO was both facially discriminatory and, as revealed by the President’s earlier statements, intended to impose burdens wholesale on persons subscribing to Islam, the same could not be said of the revised EO. Judge Trenga noted that the latter was considerably narrower in its reach (Iraq was no longer in the list of excluded countries; it did not direct that preference be given to members of minority religions over members of majority religions; all immigrant & non-immigrant visas issued before the revised EO were now valid (including those previously cancelled under the original EO) There was also a new scheme in place for those caught by the narrowed order to apply for a waiver of the ban. Unlike its predecessor, the revised EO also contained a ‘Policy & Purpose’ section detailing the national security threats in each of the 6 countries named in the later order. Judge Trenga further ruled that statements made by President and his advisors prior to the original EO could not be said to infect the legality of revised EO. His more recent statements anticipating the revised EO did not disturb the finding of facial neutrality in terms of religion. For the foregoing reasons, the Establishment Clause claim by plaintiffs was unlikely to succeed.
On the second question of whether the revised EO targeted Muslims for distinctive and discriminatory treatment contrary to 14th Amendment, the District Court explicitly addressed the issue of how much deference to afford to the Executive branch in such cases. It noted that 97% of persons living in the six listed countries were Muslim. Although the measure was as a matter of practice impacting on one religious group more severely than others, the facial validity of the revised EO combined with the rational security basis for the measure meant that this was a judgment call for the political branches. After all, the revised order caught all persons of any and no religion from the six listed countries. As for the argument that the revised EO was suspect by virtue of its under-inclusivity – that is it does not extend to other countries posing an equal or even greater risk of terrorism and that there is no evidence that any individual coming from one of the six listed countries has committed an act of terrorism in the US – Judge Trenga retorted that it could not be known whether the revised EO’s enhanced monitoring of aliens wishing to enter the US had/had not disrupted terrorist attacks. All the Court could do was look for a rational connection between the Order and the objective of enhancing national security. If this was present, then the width accorded to the Executive Branch in national security-based immigration rules ruled out judicial intervention via Equal Protection Clause of the Fourteenth Amendment.
Where now?
The Justice Department has already appealed Int’l Refugee Assistance Project & ors v. Donald J Trump which blocked the revised ban and is due to be heard on May 8 this year there will also be an appeal by Council for American Islamic Relations against Judge Trenga’s upholding of the ban. Both are due to the 4th Circuit Court of Appeals and will probably be combined into the one hearing. It is highly unlikely though to be the last judicial word on the matter. In the unpredictable world of the Trump Presidency, few onlookers doubt that the various strands of litigation will end up before the US Supreme Court.
Conclusion – What if US Supreme Court finds against Executive?
Assume for a moment that, contrary to the critics of judicial weakness at times of purported national crisis, the Supreme Court finds a basis to strike down parts/all of the revised EO. What might happen next? One dramatic possibility is an overt, Executive challenge to judicial supremacy, couched in the language of departmentalism (whereby each of the Executive, Legislature and Judiciary has in Jefferson’s words ‘equally the right to decide for itself what is its duty under the constitution…’). From outside the US (and I suspect the inside too) this looks like a recipe for chaos and anarchy. Jefferson’s position seems to invite endless conflict between Executive, Legislature and Courts. Returning to an earlier, existential crisis for the United States – the Civil War – it can be seen that in ex parte Merryman[8] President Lincoln was not above defying the courts’ rulings when he considered that the judiciary had failed to appreciate the threat to national security posed by the enemies of the United States. Is it really that fanciful to imagine via his post-ruling tweets President Trump talking up his mandate under the Electoral College system (though not the popular vote) to speak for ‘the people’, challenging the judicial branch’s defence of constitutional liberties as insufficiently grounded in of the popular mood in the country?
[1] W Brennan, ‘The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises’ (1988) Israeli Yearbook on Human Rights 11.
[2] 323 US 214 (1944) see especially the opinion of Justice Black. Cf ex parte Endo 323 US 283 (1944) decided on the same day as Korematsu provides a counter example of a successful challenge to a removal order directed at US-Japanese citizens.
[3] 71 US 2 (1866)
[4] No 17-35105 at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000860
[5] No 17-00050 http://courthousenews.com/wp-content/uploads/2017/02/Hawaii-v-Trump.pdf
[6] No 17-0361 http://www.mdd.uscourts.gov/news/international-refugee-assistance-project-et-al-v-donald-j-trump-et-al-tdc-17-0361-2017-03
[7] No 1:17 cv 00120 http://www.politico.com/f/?id=0000015b-0128-dc62-a1db-41ffbcbf0001
[8] 17 F. Cas. 144 (C.C.D. Md. 1861) Lincoln defied an order of Taney CJ to release a prisoner suspected by the US authorities of acts of sabotage and continued to hold Merryman for a further two months.
Professor Ian Cram
Professor of constitutional comparative law
Leeds
(Suggested citation: I. Cram, “Travel Bans and the US Constitution: Executive Orders in the Federal Courts”, available at: https://british-association-comparative-law.org/2017/05/24/ian-cram-travel-bans-and-the-us-constitution-executive-orders-in-the-federal-courts)
British Association of Comparative Law 