Summary of International Refugee Assistance Project v. Trump (4th Cir. May 25, 2017) by Law Student Ilene Reynoso
Ilene Reynoso
On May 25, the en banc U.S. Court of Appeals for the Fourth Circuit, in a 10-3 decision, upheld most of a District Court’s injunction against the president’s revised executive order that, as described by immigration blogger Roger Algase, would “bar[] an estimated 180 million people from six more than 99 per cent Muslim countries from entering the United States for alleged national security reasons. The Court’s majority determined that the president’s asserted national security justification for the order was essentially a sham and was thrown in after the fact to try to justify a religious ban, in violation of the First Amendment to the Constitution prohibiting the government from disfavoring a particular religion.”
The Trump administration is seeking Supreme Court review of the Fourth Circuit’s ruling in the travel ban case. The Ninth Circuit has heard oral arguments in another challenge to the travel ban (Hawaii v. Trump). Here is summary of the decision.
International Refugee Assistance Project v. Trump (4th Cir. May 25, 2007) by Ilene Reynoso
Facts
On January 27, 2017, President Trump signed Executive Order 13769 which prevented nationals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for 90 days. It suspended refugee admissions and included a clause to prioritize refugees from minority religions in their nation of origin (i.e., Christians in predominantly Muslim nations). Several sections of this order were enjoined in a temporary restraining order (TRO) entered by the Western District of Washington and the Ninth Circuit rejected the government’s request to stay the TRO.
On March 6 2017, President Trump revoked Executive Order 13769 and replaced it with a second executive order. Section 2(c) of the Second Executive Order removed Iraq from the list of countries where nationals would be under a ninety-day suspension. The President cited 8 U.S.C. §§ 1182(f) and 1185(a). This executive order justifies the suspension by stating “‘Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.’” The order then proceeds to describe the conditions in the named countries. The Second Executive Order prevents the entry of foreign nationals outside the United States without a valid visa.
There are nine plaintiffs in this case: three organizations and six American citizens whose relatives are trying to enter the United States. The Plaintiffs brought many claims including violations of the First Amendment’s Establishment Clause and the Immigration and Nationality Act (INA). The district court found multiple plaintiffs had standing. The court granted a preliminary injunction for the Plaintiffs’ Establishment Clause claim and furthered determined that the Plaintiffs were also likely to succeed in part on the merits of the INA claim. This case was then appealed to the Fourth Circuit.
Majority Opinion by Chief Judge Gregory (appointed by President Clinton and George W. Bush).
Chief Judge Roger Gregory first determined whether the Plaintiffs had standing to bring the suit. To have standing a party must have “suffered an injury in fact” “traceable to the defendant’s actions” and “likely” to be “redressed by a favorable decision.” Long Term Care Partners, LLC v. United States, citing Lujan v. Defenders of Wildlife (1992). The Plaintiff also must demonstrate a “concrete and particularized” and “actual or imminent” “invasion of a legally protected interest.” Spokeo Inc. v. Robins (2016) (quoting Lujan). This opinion found that the prolonged separation between Doe #1 and his wife (who had applied for a visa and was waiting for an interview) and Doe #1’s “fear, anxiety, and insecurity” are sufficient injuries. Doe #1 was also found to meet the other two standing requirements. The opinion did not decide whether the other Plaintiffs had standing.
The Government’s ripeness challenge was dismissed because the Plaintiffs brought a facial challenge. The Court also dismissed the Government’s argument that consular nonreviewability barred review of the claims because this case involved U.S. citizens and constitutional claims.
The Court then turned to whether the preliminary injunction of Section 2(c) was proper. For a preliminary injunction, “a plaintiff ‘must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.’” WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave (quoting Winter v. Nat. Res. Defense Council, Inc. (2008)).
The Court states that Kleindienst v. Mandel (1972) is the proper test to start with, not Lemon v. Kurtzmann (1971), which was used by the district court. In Mandel, the Supreme Court held that “‘when the Executive exercise this power [to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, not test it by balancing its justification against the [plaintiffs’] First Amendment interests.’” Kleindienst v. Mandel. But, the Court also finds that cases such as Zadvydas v. Davis (2001) and INS v. Chadha (1983) require “vigorous judicial review… when an immigration action’s constitutionality is in question.”
To pass the Mandel test, the action needs to be “facially legitimate and bona fide.” Facial legitimacy is present when there is “a valid reason for the challenged action stated on the face of the action.” And “bona fide” requires that the action be in good faith. The Court then interprets Justice Kennedy’s opinion in Kerry v. Din as allowing the court to look deeper than the action on its face when there is “‘an affirmative showing of bad faith’… ‘plausibly alleged with sufficient particularity.’”
The Court then established that the Second Executive Order is facially legitimate because of its stated purpose in national security. The Court also found that the Plaintiffs had met their burden of demonstrating the law was in bad faith. President Trump’s campaign statements regarding Muslims and a Muslim ban, advisor’s statements, the issuance of the First and Second Executive Order, President Trump’s and his Senior Policy Advisor’s statements that the second order had the same policy goals, Press Secretary Sean Spicer’s statement, and “comparably weak evidence that EO-2 is meant to address national security interests” were listed as supporting the Plaintiffs’ bad faith argument. This finding leads the Court to looking further at the Second Executive Order.
After using the Mandel test to determine the Court could look further, the Court then applied the Lemon test. For an action to pass the Lemon test, there must be “‘a secular legislative purpose,’” “‘its principal or primary effect… neither advances nor inhibits religion,’” and the action must “not foster ‘an excessive government entanglement with religion.’” Lemon v. Kurtzman. The Court focuses on the secular purpose prong. The Court looks at the same evidence they used to determine that the order was in bad faith. One of the remarks the Court notes is President Trump’s statement that when effectuating his Muslim ban he would use the word “territories” instead. Using this evidence, the Court finds that the Second Executive Order fails the secular purpose test because there is strong evidence that the primary purpose was actually a religious purpose and not national security.
Next, the Court finds that the Plaintiffs are likely to suffer irreparable harm without a preliminary injunction. The Court notes the Supreme Court found “‘loss of First Amendment freedoms… unquestionably constitutes irreparable injury.’” Elrod v. Burns (1976). The Court then looks at the balance of equities and public interest prongs together. The majority found both these prongs weighed in favor of the preliminary injunction. This opinion holds that the district court did not err in granting a preliminary nationwide injunction, so that portion was affirmed. However, the Court did find that the district court erred in enjoining President Trump, so that portion was vacated.
Concurring Opinion by Judge Traxler (appointed by President George W. Bush)
Judge Traxler concurred in both parts of the judgment.
Concurring Opinion by Judge Keenan (appointed by President Obama)
Judge Keenan analyzed the Plaintiffs’ claim that the Second Executive Order violates the INA. She finds that 8 U.S.C. § 1152(a)(1)(A) (prohibiting discrimination based on nationality) does not limit the President’s authority to “‘suspend the entry of all aliens or any class of aliens’” under 8 U.S.C. § 1182(f) because Section 1152(a)(1)(A) concerns visas while Section 1182(f) concerns entry, but does not mention visas.
President Trump relied on Sections 1182(f) and 1185(a). However, Judge Keenan concluded that Section 1185(a) does not give a president authority. The concurrence asserts that under Section 1182(f) there must be a “finding” that “entry of the aliens in question ‘would be detrimental to the interests of the United States.’” However, Judge Keenan reasons that the Second Executive Order’s text fails to demonstrate support for Trump’s conclusion that meets this standard because the order does not state a relationship between an individual’s nationality in one of the designated countries and their intent to carry out a terrorist act. Thus, Section 2(c) fails the finding requirement. Judge Keenan further concluded that the Plaintiffs are “‘likely to suffer irreparable harm in the absence of preliminary relief,’ the balance of equities would resolve in their favor, and an injunction would be in the public interest’” (citation omitted). This opinion also notes the public’s interest “‘in free flow of travel’ and ‘in avoiding separation of families’” (quoting Washington v. Trump). Judge Keenan would also affirm the district court’s judgment on the Establishment Clause claim.
Concurring Opinion by Judge Wynn (appointed by President Obama)
Judge Wynn also looks at whether Section 2(c) was a valid assertion of the President’s power under Section 1182(f), specifically whether it “authorize(s) the President to deny entry to a class of aliens on the basis of invidious discrimination.” His concurrence then turns to the “‘constitutional avoidance canon’” and “‘delegation of authority canon’” and states that together there must be a clear indication that Congress intended for a “‘particular interpretation… to invoke the outer limits of Congress’ power.’” (citing INS v. St. Cyr (2001)). Analyzing the case at hand, this opinion finds that viewing Section 1182(f) as allowing the President to discriminate conflicts with the Constitution so there must be an explicit indication of congressional intent.
Judge Wynn concludes that there is no such indication in Section 1182(f) when looking at the plain meaning of the section or at the broader context of the Immigration Act. The opinion notes that Section 1182(a) lists specific classes that are not allowed to receive visas or entry and none are based solely on religion, race, or national origin. Further, if the President did have absolute authority to deny entry to a class of aliens, Section 1182(a) would be superfluous. Additionally, the President’s reliance of Section 1182(f) conflicts with Section 1182(a)(3)(B) which has criteria for “‘terrorism-related inadmissibility.’”
Judge Wynn further concludes that allowing Section 1182(f) to give the President absolute power to deny aliens would conflict with Section 1152(a) which prohibits “preference or priority” in the visa application process “based on race, sex, nationality, place of birth, or place of residence.” The opinion further notes that amendments to the INA in 1965 that eliminated nationality-based quotas and reasons that Congress did not intend to give the President absolute authority to engage in discrimination under Section 1182(f).
Concurring Opinion by Judge Thacker (appointed by President Obama)
Judge Thacker emphasizes that not considering remarks before President Trump took office and an additional finding that the Appellees are also likely to succeed in arguing Section 2(c) violates 8 U.S.C. § 1152(a)(1)(A) of INA. His concurrence notes that before his inauguration any statements were not official conduct and that presidents have often acted differently than they said they would when they were campaigning. Judge Thacker concludes that even without pre-inauguration remarks there is plenty of evidence to support the conclusion that Appellees are likely to succeed on the merits of their Establishment Clause claim. The concuurrence pays particular attention to the First Executive Order and statements made by President Trump, his advisor, and Press Secretary Sean Spicer after it was signed.
The opinion explains that, based on the justifications for the ban, Venezuela and the Philippines (both Christian majority countries) should have been included. The fact that Muslim majority nations and Islamic terrorism are singled out and that the Second Executive Order “seeks information on honor killings” suggest that “the principal motivation for the travel ban was a desire to keep Muslims from entering the country.”
Judge Thacker identifies a conflict between Sections 1182(f) and 1152(a)(1)(A) and that Section 1152(a)(1)(A) (prohibiting discrimination based on nationality) limits the President’s power under Section 1182(f). Otherwise, Section 1152(a)(1)(A) would be meaningless. Additionally, Section 1152(a)(1)(A) was enacted after Section 1182(f) which suggests the former was meant to modify the later.
Dissenting Opinion by Judge Niemeyer (appointed by President George H.W. Bush)
Judge Niemeyer found error in the fact that the district court did not apply Mandel, included the campaign statements in their decision, and “radically extend[ed] Supreme Court Establishment Clause precedents” and would thus vacate the district court’s judgment. Although the majority applied Mandel, Judge Niemeyer finds it did not apply it properly. The dissent focuses on the similarities between the case at issue and Mandel in that both deal with Congress’ delegation of power to the executive regarding entry of foreign nationals and in both cases the plaintiffs brought challenges under the First Amendment. Judge Niemeyer concludes that the majority’s interpretation of Kerry v. Din was not accurate namely that it did not authorize looking beyond the “notice for the purpose of showing bad faith.” The opinion further holds that under Mandel, there is nothing on the face of the Executive Order that violates the Constitution.
In addressing the use of campaign statements, the opinion notes that the Court has never used such statements before in executive action cases. Additionally, Judge Niemeyer notes if campaign statements are allowed, there are no limits to what can be looked at and that circumstances may change the President’s opinions. Further, allowing the use of campaign statements would likely chill political speech. Judge Niemeyer also concludes that the Plaintiffs are not likely to succeed on the merits especially because the Second Executive Order has no mention of religion and that the “national security justifications,… are consistent with the stated purposes of the Order.”
Dissenting Opinion by Judge Shedd (appointed by President George W. Bush)
Judge Shedd quotes Dept. of Navy v. Egan (1988) noting that “‘courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.’” The opinion finds that the Executive Order clearly is about national security concerns. Judge Shedd emphasizes the district court’s use of campaign statements, use of former government officials’ national security evaluations, use of the fact the executive order was not submitted for “inter-agency review,” and the district court’s lack of consideration for the assessments of the current Attorney General and Secretary of Homeland Security as errors. This opinion states that the temporary travel ban does not serve the alleged goal of “banning Muslims.” Judge Shedd opines that the “fatal flaw” is that the district court did not “account for the public interest” because sometimes constitutional rights must “yield to the public interest in national security.” For these reasons, Judge Shedd finds that the district court abused its discretion.
Dissenting Opinion by Judge Agee (appointed by President George W. Bush)
Judge Agee would find that the Plaintiffs in this case do not have standing. One of the Plaintiffs, Meteab was found to have standing by the district court. However, Meteab’s relatives seeking to enter the United States are refugees to whom Section 2(c) is inapplicable. Doe #3’s wife has since been granted a visa. Judge Agee finds that the stigma claimed by both Meteab and Doe #3 is not enough to confer standing. As for Doe #1, Judge Agee finds that the alleged injury of prolonged separation with his wife is “conjectural and hypothetical” and thus not a valid injury for standing. To support this conclusion, Judge Agee notes that there is no way of knowing if the wife would have her interview within the ninety-day period absent the suspension. The opinion also determines that the stigmatization injuries are merely “a subjective disagreement with a government action.” Based on this reasoning, Judge Agee would vacate the district court’s preliminary injunction.
KJ