Monday morning, the 9th Circuit Court of Appeals heard oral argument concerning the constitutionality of President Trump’s travel ban executive order. Again!
The two plaintiffs — the State of Hawaii and a Hawaiian citizen and imam, Ismail Elshikh — contend that the revised travel ban violates the United States Constitution by discriminating on the basis of religion against persons seeking visas to the United States.
Is the travel ban, which prohibits persons from six predominately-Muslim nations from obtaining visas to travel to the United States, a neutral regulation based on nationality? Or is nationality a mere pretext for religious discrimination?
{mosads}The outcome will likely depend on whether the law requires or forbids the court from considering the statements of President Trump in issuing both the original executive order and its more limited revision.
Plaintiffs contend that courts should look at the objective meaning of President Trump’s statements to determine whether the law discriminates on the basis of national origin. The United States contends that the judges should review only the language of the executive order itself, which does not mention religion, and ignore the statements of the president and members of his administration.
Put aside the existing law, which could be read to favor either party. Put aside also, for a moment, the substance of President Trump’s comments, which have been well-reported. Both sides face a similar underlying problem: their positions, taken to an extreme, could lead to drastic problems for our nation.
If the court agrees with the plaintiffs, then what power does the president retain to deal with true security threats? Jeffrey Wall, the Acting Solicitor General representing the government, asked the court to consider, for example, credible threats of a terrorist attack from an unknown Libyan national. Shouldn’t the president, under those circumstances, have the inherent authority to temporarily suspend entry to the United States of all Libyan nationals? And if the president can suspend entry from one nation for a few days, why can’t he suspend entry from six nations for a few months, as this temporary ban provides?
On the other hand, if the court agrees with the government, then what principles limit the presidents’ ability to use neutral executive orders to discriminate? The United States has experience with overreaching executive orders in the past.
Consider Executive Order 9066, President Franklin Roosevelt’s seemingly neutral order about military security during World War II. This order provided the legal justification for the internment of over 100,000 American citizens of Japanese ancestry. The United States Supreme Court affirmed the constitutionality of that order in Korematsu v. United States, a case that judges and lawyers view as one of the worst court decisions in our nation’s history. No judge wants to repeat that travesty, and Judge Paez of the Ninth Circuit explicitly asked about the issue.
It is for the courts to find a suitable middle path, and it doesn’t appear that there is an immediately satisfying one. Perhaps the Ninth Circuit will choose to avoid this issue entirely. The government is urging the Court to dismiss the case based on standing, a doctrine that requires plaintiffs to allege a sufficiently concrete and particularized injury in order to bring their case.
Plaintiffs say that President Trump’s executive order is an end-run around carefully-balanced statutes concerning visas, and that those statutes already provide a means of excluding persons who might be security threats. These may provide alternate paths for deciding this appeal.
Lurking over this case is the unpredictable President Trump himself. If this were an ordinary president, making ordinary claims of security, this executive order would more likely be constitutional. The government would be in a much stronger position if he kept his mouth shut about this issue after inauguration. But that, apparently, is beyond the limits of his self-control.
William Fernholz is a lecturer-in-residence at the UC Berkeley School of Law and the director of its appellate and competitions programs.
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