The controversy over the Trump immigration executive order has already produced sharply conflicting orders from courts in Washington state and Massachusetts. A judge in Seattle has issued a temporary restraining order nationwide over the executive order while a judge in Boston declined to do so. Such divergent results are not uncommon in such controversies. However, as I have previously explained, I believe that the law favors the Administration despite good-faith arguments advanced by the challengers. Moreover, even if courts strike down a portion of the executive order, it is likely that other portions will be upheld on review. While I have been very critical of the order (and how it was rolled out), I still believe that the weight of binding authority on these trial courts favors President Trump. We should get an answer sooner than expected: the Administration has decided to ask for an emergency order from the Ninth Circuit to block the Seattle court. In the meantime, the airlines have been told to start to allow people on planes to the United States and the Justice Department is apparently not filing the emergency motion tonight. That means that people will start to arrive before the Justice Department files. It could look a bit curious that the Administration is claiming a national security danger in these entries but would wait to file the emergency motion.
District Judge Nathaniel M. Gorton in Massachusetts issued his decision on Friday and found that the president had the authority to issue the executive order. Gorton wrote “While this Court is sympathetic to the difficult personal circumstances in which these plaintiffs find themselves, if they choose to leave the country, as nonresident aliens, they have no right to re-enter.”
The order from the Western District of Washington did not contain any legal analysis or explanation. Rather U.S. District Court Senior Judge James L. Robart stated that he would release an opinion at a later date. Nevertheless, the order granting a temporary restraining order was a clear victory for challengers. To prevail, a party seeking “must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that [a temporary restraining order] is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). On top of that demanding standard, courts tend to be more exacting when an order targets the exercise of a core executive function. Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978) (requiring “an extraordinarily strong showing” when an order would “deeply intrude into the core concerns of the executive branch.”). Moreover, Judge Robart’s recognition of the right of the state attorney general to bring the case is itself controversial given prior standing rulings.
Ironically, Democratic attorneys general are seeking the ability to sue over precedent established not by President Trump but President Obama. The Obama Administration argued for years that a president had virtually unchecked authority at our borders and specifically that states like Arizona did not have the right to interfere or countermand federal immigration policies. See Arizona v. United States, 132 S. Ct. 2492, 2502 (2012). The case law heavily disfavors a state from bringing a parens patriae action on behalf of citizens, let alone non-citizens. Moreover, the complaint by the Washington Attorney General advanced highly speculative claims of injury given (1) the exemption of green card holders, (2) the temporary character of the order; and (3) the loose claims of reduction in tourism and student visas. The complaint states that the order affords the state standing due to its
“separating Washington families, harming thousands of Washington residents, damaging Washington’s economy, hurting Washington-based companies, and undermining Washington’s sovereign interest in remaining a welcoming place for immigrants and refugees.”
Putting aside injury, there remains the question of the likelihood of prevailing given the statutory and case authority favoring executive power in this area. As previously discussed, Section 1182 (f) expressly allows a president to exclude individual aliens or groups of aliens when the Administration determines that entry of such aliens or class of aliens would be “detrimental to the interests of the United States.” The Ninth Circuit (which covers Seattle and issues cases that are binding on Judge Robart) has held that “that statute specifically grants the President, where it is in the national interest to do so, the extreme power to prevent the entry of any alien or groups of aliens into this country as well as the lesser power to grant entry to such person or persons with any restriction on their entry as he may deem to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980).
Challengers rely on 8 U.S.C. §1152 (a) (1) (A), which states that “no person shall receive any preference or priority or be discriminated against in the issuance of of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” I have previously raised concerns about the sweeping claims made under this amendment which was part of an effort to end the use of numerical quotas that favored certain parts of Europe. On its face, the provision would not impact much of the executive order since it deals only with the issuance of visas and does not on its face apply to refugees or nonimmigrant visas. Moreover, the law was later amended to exclude changes in “procedures” even for those seeking immigrant visas. Section 1152(a)(1)(B) states that the law shall not be “construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” That sounds a lot like an order temporarily suspending entries “to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States” and then “implement such additional procedures.” Executive Order § 5 (a).
If Section 1152 and 1182 present a possible conflict, a court is supposed to adopt that interpretation that avoid the conflict. California ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000). Moreover, the degree to which this provision limits the executive power can itself produce a constitutional challenge . . . from the executive branch. I previously discussed cases like United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936) and the Court recognition of plenary authority of the executive over foreign relations and our borders. The Court has specifically held that “The exclusion of aliens is a fundamental act of sovereignty . . . inherent in the executive power to control the foreign affairs of the nation. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
Part of the difficulty of the challenger’s reading of future law is that it would prove too much. Specifically, it would mean that past actions by both presidents and Congress would be unlawful. It would suggest that, when a president finds that there is a danger related to entries from a particularly country, the president cannot suspend entries from that country. Yet, that is precisely what has happened in the past. In 1986, President Reagan suspended entry of Cuban nationals as immigrants into the United States, subject to certain exceptions. See Suspension of Cuban Immigration, 1986 WL 796773 (Aug. 22, 1986). In 1996, President Clinton suspended entry of members of the Government of Sudan, officials of that Government, and members of the Sudanese armed forces as immigrants or nonimmigrants into the United States. See Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members or Officials of the Sudanese Government or Armed Forces, 1996 WL 33673860 (Nov. 22, 1996). The Justice Department noted in its brief before Judge Robart that both Congress and President Obama made such nationality based determinations to exclude groups of aliens:
“Congress likewise has expressly drawn distinctions based on nationality. For example, in 2015, Congress amended the INA to exclude certain individuals from a visa waiver program (i.e., the ability to enter the United States as a nonimmigrant without a visa) on the basis of nationality. See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242, 2990 (2015) (codified at 8 U.S.C. § 1187(a)(12)). Congress expressly excluded nationals of Iraq and Syria from the program, see 8 U.S.C. § 1187(a)(12)(A)(ii), and created a process by which the Secretary of Homeland Security could designate additional “Countries or areas of concern,” for exclusion of a country’s nationals. See id. § 1187(a)(12)(D). As of February 2016, the exclusion applied to nationals of Iraq and Syria (pursuant to the statute’s plain text), as well as nationals of Iran, Sudan, Libya, Somalia, and Yemen (pursuant to Executive Branch designations under the statutory scheme). See Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016). These seven countries excluded from the visa waiver program are the same seven countries that are covered by Section 3 of the President’s January 27, 2017 Executive Order. See Executive Order § 3(c) (incorporating by reference “countries referred to in section 217 (a) (12) of the INA, 8 U.S.C. 1187 (a) (12).”
None of this means that the challenges to the Executive Order are frivolous or that parts of the Executive Order could not be struck down. However, the weight of existing case law favors the Administration in my view. Courts are bound to avoid conflicts when possible in the interpretation of two laws and further interpret laws to avoid conflicts with constitutional powers. Moreover, they have a long-standing commitment to minimize the extent to which they find parts of a law unconstitutional. The result is that the odds still rest with the Administration in preserving all or part of the law, particularly after exercising its discretion to exempt green card holders.