Though the Constitution forbids federal judges from offering their views on issues that aren’t essential to deciding cases before them — known as “advisory opinions” — five Republican-appointed judges on the famously liberal Ninth Circuit Court of Appeals did just that last week. They jury-rigged a mechanism to enable them to vent about three colleagues’ controversial travel-ban ruling more than a month earlier, upholding the opinion of a Seattle judge, who took a high-profile stand against President Trump’s travel ban. The timing of the unofficial dissents is odd, since the Justice Department was no longer trying to appeal that decision. Pushing the strangeness of their action even further, they also seemed to be weighing in about two recent district-court cases that weren’t before them by any stretch of the imagination.
Regardless of the unorthodox circumstances of their issuance, these dissenting opinions are important, because they provide a preview of how, at a minimum, the conservative justices on the Supreme Court may see the issues. With Judge Neil Gorsuch looking likely to be confirmed by the Senate, there could well be five such justices in place by the time the latest travel ban cases reach that Court. It’s not a pretty picture.
Though even the five dissenting Ninth Circuit judges nominally rejected the autocratic posture adopted by the Trump administration —that the president’s decrees in the immigration context are simply unreviewable —the limited judicial oversight they would permit, and the evidentiary blinders they would require judges to wear while engaging in it, amount to the same thing.
To quickly review, on January 27 President Donald Trump issued his first travel ban, which, among other things, suspended entry for at least 90 days by aliens from seven countries that have more than 90 percent Muslim populations. It triggered chaos at airports around the world, led to the summary revocation of tens of thousands of visas, and prompted detentions of more than a thousand apparently innocent people. (A senior Trump administration official declared the rollout to be “a massive success story.”) On February 3, Seattle federal judge James Robart entered a temporary restraining order in a case called Washington v. Trump, suspending the impact of the order until a fuller hearing could be held. On February 9, a three-judge panel of the Ninth Circuit unanimously upheld Robart’s preliminary order.
Though the Justice Department could have appealed the panel’s ruling to a larger contingent of Ninth Circuit judges in what’s known as an en banc rehearing, it chose not to. Instead, it asked for a stay until a better-crafted executive order could be drafted. After a new, much narrower one was issued, on March 6, the department withdrew its appeal.
At least one Ninth Circuit judge, however, wanted to express his opinion anyway. That judge (who isn’t identified in court records) asked that the 25 active appellate judges of the court be polled on whether to hold an en banc hearing on whether to vacate the three-judge panel’s ruling, even though no party was asking for that relief. When the majority declined, five dissenters took the opportunity to publish three opinions dissenting from the refusal to grant their own request.
The first of these dissents was rushed to publication on March 15, in an apparent attempt to influence the several district judges that were then deliberating whether to block the new travel ban. The other two dissents weren’t docketed until two days later, by which time two of those courts —one in Hawaii and one in Maryland — had, in fact, blocked key provisions of the second ban from taking effect.
The most important dissent is that of Judge Jay Bybee, whose name may ring a bell. Bybee was appointed to lead the Office of Legal Counsel of President George W. Bush’s Justice Department in late 2001, shortly after the September 11 attacks. In 2002 he was one of the signatories to the so-called “torture memos,” which gave the department’s blessing to the C.I.A.’s use of “enhanced interrogation techniques” against terrorism suspects, including water-boarding, a decision that later led the New York Times editorial board, among others, to call for his criminal investigation. (The memos, and Bybee’s role in them, emerged only after the Senate had already affirmed his nomination to the Ninth Circuit, in 2003.)
While some might feel that this history taints Judge Bybee’s authority, his firsthand experiences actually do leave him unusually well-versed in the precedents relating to the extremes to which our government can constitutionally go when fighting terrorism. In his dissent, Bybee recounts, for instance, a measure, instituted shortly after 9/11, which required all nonimmigrant alien males then in the U.S. who were over the age of 16 and from any of 25 countries — 24 majority-Muslim countries plus North Korea — to report for registration and fingerprinting. The program was challenged under the Equal Protection Clause in numerous courts for discriminating on the basis of religion, ethnicity, gender, and race, but was upheld by each of the six appellate courts that examined the issue. Since the government had put forward “a facially legitimate and bona fide reason for” the categories of people affected by the program, the courts found, the measure was lawful.
The key legal finding — that there was a “facially legitimate and bona fide reason” for the challenged categories — tracked a legal test articulated in a 1972 Supreme Court ruling called Kleindienst v. Mandel, which is also the key precedent Bybee believes the Ninth Circuit panel that affirmed Judge Robart’s order, in Washington v. Trump, failed to heed. In that case a Marxist journalist from Belgium, who had been invited to speak at Stanford and other universities, was barred from entering the country. Notwithstanding the First Amendment issues, the Supreme Court upheld Mandel’s exclusion under an immigration statute authorizing exclusion of aliens who advocate the “doctrines of world communism.”
In the cases concerning Trump’s travel ban, the Justice Department relies on a different but broad provision of the immigration law, codified at Section 1182(f) of Title 8 of the United States Code:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
When the Mandel standard of review is combined with the broad language of Section 1182(f), Judge Bybee concluded, there was very little left for courts to do. “Even if we have questions about the basis for the President’s ultimate findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide reason’ behind for the President’s actions, our inquiry is at an end.” (Emphasis in the original.)
A key question that other appeals courts and, likely, the Supreme Court will eventually be deciding is whether that very minimal Mandel standard of review is the right one for courts to use in the face of an executive order as sweeping as the travel ban. Those judges who have blocked either ban so far have found, for various reasons, that it wasn’t.
Another issue is whether even the Mandel standard saves the travel ban. For that standard has two parts. Bybee found that judges’ hands were tied by its first half, but he then ignored the second half. While the government has unquestionably articulated a “facially legitimate” reason for the president’s actions — that the countries whose nationals are subject to the ban have been compromised by terrorism, war, or civil unrest — it has not necessarily shown that this is a “bona fide reason” for the ban (i.e., the genuine, good-faith reason), rather than a pretextual one. To determine that, one would need to look at the context in which it arose.
And once you start looking at context, that’s when any defense of the ban begins to crumble. At this stage — because the second ban has cleaned up most of the due-process issues presented by the first one — the strongest arguments against the ban are based on the First Amendment’s Establishment Clause, which forbids the government or states from favoring one religion over another.
Because of this well-known constitutional bar, politicians who try to exalt their religion over someone else’s — requiring, say, the Lord’s Prayer to be read in public schools or erecting a crèche on public property — usually try to hide their religious purpose behind a claimed secular one. Accordingly, courts analyzing Establishment Clause claims traditionally do, to borrow Bybee’s words, “peek behind the curtain” to figure out the measure’s real-world motivation.
In the past, this has meant, among other things, looking at press reports of politicians’ words and actions including, where appropriate, campaign statements. In 2003, for instance, in finding that an Alabama chief justice had violated the Establishment Clause by installing a monument to the Ten Commandments in the rotunda of the Alabama State Judicial Building, the federal appeals court in Atlanta relied upon, among other evidence, the justice’s campaign committee statements, his campaign ads, his campaign platform, and his campaign promises.
When you subject Trump’s travel bans to this conventional analysis, you’re confronted with the following sequence of events.
In December 2015, the Trump campaign posted an official “Statement on Preventing Muslim Immigration” on its web site, “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” In a tweet the same day, then–primary candidate Trump drew attention to this “very important policy statement on the extraordinary influx of hatred and danger coming into our country.”
In March 2016, in an interview with CNN, Trump said that “Islam hates us,” and complained that the U.S. had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace.” Later that month, in an interview with Fox Business News, he said, “We’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”
After winning the Republican nomination, in July, Trump’s Muslim ban began metamorphosing into a ban on people “from any nation that has been compromised by terrorism.” Asked if this was a “rollback” from the “Muslim ban,” Trump responded that, on the contrary, it was actually “an expansion … People were upset when I used the word Muslim,” so he was now “talking territory instead of Muslim.”
On January 25 of this year, during his first week in office, President Trump discussed his plans to implement “extreme vetting,” saying, “No, it’s not the Muslim ban … It’s countries that people are going to come in and cause us tremendous problems.”
On January 27, during the signing ceremony for the first travel ban, Trump read its title aloud — “Protecting the Nation From Foreign Terrorist Entry into the United States” — and then said, “We all know what that means.”
The next day, Trump adviser and former New York mayor Rudolph Giuliani told Fox News, “When [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
Against this backdrop, then–Deputy Attorney General Sally Yates refused to defend the constitutionality of the ban, and was fired. Since then, three district courts have found that there is a very serious question about what the primary reason really was for these travel bans, especially given the extraordinarily thin evidence that had been produced of any pressing national-security need. (For the first ban, the Justice Department offered no evidence of inadequacies with existing visa-vetting procedures; for the second, it cited two terrorist incidents, one involving the 2013 conviction of two Iraqis who’d entered as refugees in 2009 — though Iraq had, by then, been deleted from the list of countries impacted — and another involving the 2014 conviction of a naturalized U.S. citizen, whose arrest came years after his entry into the U.S. as a Somalian refugee, when he was a child.)
In the face of this small mountain of damning evidence raised by Trump’s overtly anti-Muslim campaign rhetoric, and negligible countervailing evidence that the existing visa-vetting procedures were flawed, the travel bans look vulnerable.
Evidently hoping to forestall judges from heading down this path, Judge Bybee dropped a footnote in his opinion urging that conventional Establishment Clause analysis should be thrown out the window in immigration cases. The “unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world,” he wrote.
Perhaps because Washington v. Trump, the case Bybee was writing about, had not, itself, been even decided on Establishment Clause grounds — that appeal, remember, was from the ruling of Judge Robart, who had blocked the first travel ban on due-process grounds — Bybee did not elaborate on what he meant.
But those scruples did not stop another of last week’s dissenters, Ninth Circuit Judge Alex Kozinski, from taking up the cudgel. Writing separately, Kozinski devoted almost his whole opinion to attacking the reasoning of the rulings in the Hawaii and Maryland cases, though neither of those was before him. He offered a strange, quasi-First Amendment argument, stating that if judges started looking into Trump’s campaign statements — which he termed “an evidentiary snark hunt” — they would “chill campaign speech” in the future. (It’s an odd argument. Generations of domestic Establishment Clause inquiries in the past don’t seem to have noticeably hampered politicians’ willingness to speak freely. And if future officials will have to think twice before stooping to anti-Muslim hate speech on the campaign trail, bring it on.)
I don’t mean to suggest that the travel-ban cases are easy. They aren’t, and no judge to date has said that they are. Between the broad language of Section 1182(f) and the minimal judicial oversight the Supreme Court provided in the Mandel precedent, it seems quite probable that the four conservative Supreme Court justices will see these cases much the way Judge Bybee did. And a Justice Gorsuch would make five.
The stakes are high. The narrow question is whether courts can play any meaningful role in ensuring that a president can’t abuse immigration decrees to score political points by harassing and denigrating Muslims. The broader one is whether the Supreme Court will endorse and encourage President Trump’s autocratic instincts and conception of Executive power.
Delicately put, we have an unusual president right now — one of the most dishonest and impulsive the country has ever had. Now is not the time to be curtailing judicial review. No president needs or deserves constitutional protection from his own mouth.
