On June 26, 2017, just before breaking for summer recess, the Supreme Court of the United States forged a dramatic exit by issuing a per curiam opinion on the hotly debated “Protecting the Nation from Foreign Terrorist Entry Into the United States, Exec. Order No. 13780, 82 Fed. Reg. 13209,” more colloquially known as the “Travel Ban.”
Instead of following the trend of lower Circuit Courts and leaving in place a Temporary Restraining Order, SCOTUS struck a compromise that enabled the Ban to take effect, with certain carve-outs for persons who can establish a bona fide relationship to a close relative or entity in the United States. While the Ban has garnered enormous attention both in and outside the immigration law community, its most controversial attribute – an apparent intent to discriminate against Muslims – may be avoided entirely when the matter is revisited in the Supreme Court on the merits in early October.
In fact, we are highly unlikely in the foreseeable future, if ever, to have an answer to the nuanced question of whether an administration’s anti-Muslim statements, including those made on the presidential campaign trail, come to bear on a court’s determination that an executive action is motivated by religious animus. Answering this question would mean redefining the limits of the Establishment Clause, a claim the Ninth Circuit briefly acknowledged before swiftly and deliberately goose-stepping it. In refraining from analyzing whether the administration’s primary intent in issuing the Travel Ban was discrimination against Muslims, the Ninth Circuit invoked a trusty mainstay of constitutional jurisprudence known as constitutional avoidance. The canon goes that when given the choice between issuing an opinion on constitutional grounds versus statutory ones, the court should take the path of least resistance and rule on the latter, exercising what Am. Foreign Serv. Ass’n v. Garfinkel referred to as “judicial restraint.”
Constitutional avoidance led the Ninth Circuit away from the Establishment Clause to a discussion of delegated executive power under the Immigration and Nationality Act (INA) and a debate about statutory construction. Congress, through the INA, delegated enormous power to the President to suspend the entry of all aliens or any class of aliens if their entry is found to be detrimental to the United States. But later versions of the INA explicitly preclude discrimination against aliens on the basis of “race, sex, nationality, place of birth or place of residence” in the issuance of immigrant visas, which plaintiffs in this matter argue places clear limits on a president’s ability to enforce executive orders against entire nations.
Rather than reconciling these two provisions, the Ninth Circuit reasoned that the President failed to meet a precondition for exercising his broad power to exclude, citing reports from the Department of Homeland Security that undermined his claims that persons from the six countries were detrimental to U.S. interests. And this line of reasoning – one that underscores, on the facts, the disjointed relationship between sweeping exclusions of aliens and the administration’s facially legitimate goal of combating terrorism – has the effect of precluding executive actions motivated by other, less savory considerations than they purport to, without having to delve into a messy constitutional analysis.
But if, in fact, an executive action smacks of discrimination, the use of constitutional avoidance feels wholly dissatisfying. In the right context, the canon insulates courts from having to make sweeping and controversial constitutional decisions with any regularity; but constitutional avoidance is largely intended to protect against challenges to legislation, specifically. If the courts are too heavy handed in overturning acts of Congress, the thinking goes, then they interfere directly with the democratic process that produced such legislation, to the ultimate detriment of their own legitimacy. So unless the President’s success in the 2016 elections is viewed as a referendum on the travel ban, then the court’s involvement in constitutional questions in this case does not run afoul of the doctrine’s intent. On the contrary, if the court takes the same route as the Ninth Circuit, to the same or some other result, it risks dodging, on a technicality, one of the most complicated but important constitutional questions in recent memory.
It is worth noting that a separate Fourth Circuit opinion on the Travel Ban, which is merged with the Ninth Circuit opinion on appeal to the Supreme Court, faced the Establishment Clause head on, and it found, through its Establishment Clause analysis, that plaintiffs could succeed on their claim that the executive order was issued in bad faith. But recent history suggests that it is the Ninth Circuit’s opinion rather than the Fourth Circuit’s that will inform the Supreme Court’s posture in the Fall term. The move would echo a similar one made by the Court in 2016, in United States v. Texas, which also sought answers regarding the limits of executive power in the realm of immigration – specifically regarding the Take Care Clause of the Constitution – but was ultimately decided on separate grounds with little light shed on the constitutional issue. And in its per curiam decision lifting the TRO, the Supreme Court managed to avoid any discussion of the claims of religious discrimination and focused instead on the direct harms that plaintiffs were likely to suffer, for example, as a result of being separated from family members. SCOTUS ultimately fashioned a compromise of sorts that temporarily balanced the interests of plaintiffs and the government evenhandedly, making it less likely that it will undo the ban altogether in October.
If the Supreme Court does follow the Ninth Circuit’s lead, it could find that the executive’s power under the INA is nearly absolute, and therefore unrestrained by the limits of the INA provision against discrimination. Or it could find some middle ground, as it has done with the TRO, and limit the executive’s power to exclude on the basis of national origin to nonimmigrants, taking advantage of a clear legislative loophole. It could also agree with the Ninth Circuit that the president did not meet the basic requirements for invoking his power to exclude in the first place, and hold that the connection between these six countries and potential future terrorism attacks is too tenuous to conclude that entry by all affected foreign nationals is detrimental to the U.S. This latter route seems to be the least likely, however, as it requires SCOTUS to venture into the even less comfortable realm of nationality security.
Or – SCOTUS could engage the constitutional question head on, and attempt to discern the administration’s intent – good or bad – in crafting the ban. Doing so risks finding, to plaintiffs own detriment, that imputing religious animus to the administration creates a slippery slope whereby an individual’s unofficial statements outside the office of the presidency may be held against them in any future executive action. SCOTUS may ultimately decline to include the wealth of unofficial statements indicative of the president’s religious motivation because doing so, without clear limits, creates murky precedent. But avoiding the topic altogether would allow the court to do something the rest of the country does not have the luxury to do, and that is, in the words of Chief Judge Gregory of the Fourth Circuit, to “shut [our] eyes to such evidence when it stares [us] in the face.”
Reprinted with permission from the July 19, 2017 edition of the The Legal Intelligencer© 2017 ALM Media Properties, LLC. All rights reserved.
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