Despite the TRO, the Legal Arguments Against Trump's Immigration Order Are Iffy
The travel ban is unfair and illogical, but that does not make it illegal.
When Sally Yates, then the acting attorney general, refused to defend President Trump's executive order suspending the U.S. Refugee Admission Program and blocking the entry of travelers from seven Muslim-majority countries, she said she wasn't sure the new restrictions were legal, but she didn't say why. Likewise James Robart, the federal judge in Seattle who last Friday issued a temporary restraining order (TRO) prohibiting enforcement of the travel ban. This reticence reflects a reality that will not please opponents of the order who want it to be illegal as well as unfair and unwise: The president has very broad authority to restrict admission to the United States, while foreign nationals have no right to a visa or refugee status.
Legal permanent residents have stronger claims, but they supposedly are no longer covered by the travel ban. I say "supposedly" because green-card holders from the seven countries Trump picked—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—arguably are still covered by the order, even if they presumptively qualify for waivers. Then again, Nathaniel Gorton, a federal judge in Boston who upheld Trump's order on the same day Robart issued his TRO, concluded that the language of the travel ban does not apply to legal permanent residents, even though the Trump administration initially said it did.
The complaint that resulted in the TRO, which was filed by the states of Washington and Minnesota, cites 10 causes of action, including equal protection, due process, and religious freedom claims. In approving the TRO, Robart concluded (among other things) that the plaintiffs are "likely to succeed on the merits," but he gave no indication of which arguments he found most persuasive. Josh Blackman, a professor at South Texas College of Law, highlighted the skimpiness of Robart's seven-page ruling in an interview with The New York Times. "Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?" Blackman asked. "Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper."
Gorton's ruling is three times as long as Robart's, and it marshals considerable evidence to support the view that the executive order is well within the president's powers, starting with this provision of the Immigration and Nationality Act (INA): "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."
That power, Washington and Minnesota argue, is limited by another provision of the INA that says "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." The Trump administration argues that "pausing then resuming visa applications" based on nationality does not qualify as discrimination "in the issuance of" immigration visas. Even if that's a stretch, this provision does not help refugees, students, tourists, or other travelers using nonimmigrant visas.
Several of the lawsuit's other claims also have limited application. "Where Congress has granted statutory rights and authorized procedures applicable to arriving and present non-citizens," the complaint says, "minimum due process rights attach to those statutory rights." Even if accepted, that claim would not help people outside the United States seeking permission to enter it. Similarly, Washington and Minnesota argue that the INA gives would-be refugees a right to seek asylum once they arrive in the United States, meaning it is illegal to remove them without a hearing. That claim would not help the vast majority of refugees, since you must be on U.S. soil to seek asylum. Washington and Minnesota's claim under the Foreign Affairs Reform and Restructuring Act, which says "the United States may not involuntarily return any person to a country where there are substantial grounds for believing the person would be in danger of being subjected to torture," likewise would not apply to refugees who have not made it to the U.S. yet.
The claims with broader implications tend to be shakier. Washington and Minnesota argue that Trump's order violates the Establishment Clause by favoring Christians over Muslims. It is true that the vast majority of people affected by the travel ban are Muslim and probably true that preferences for religious minorities in the admission of refugees will mainly benefit Christians (which according to Trump is the intent). But the order is framed in religiously neutral terms, and it has no effect on the vast majority of Muslim travelers (those who are not refugees and do not come from any of the seven covered countries).
Washington and Minnesota cite Trump's history of calling for "a total and complete shutdown of Muslims entering the United States," a proposal that evolved into the order issued on January 27. Comments by Trump and his adviser Rudy Giuliani suggest the changes were aimed at making the policy less controversial and more likely to pass legal muster. Those comments arguably show the order is a Muslim ban by another name, still motivated by animus against a particular religion. Yates, who in the letter laying out her position on the order alluded to "statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order's purpose," seems to think so. But to accept this argument, courts would have to speculate about Trump's motives, which they may not be willing to do in the context of an order that is ostensibly aimed at protecting national security.
Washington and Minnesota argue that the executive order violates the Fifth Amendment's guarantee of equal protection (implicit in the Due Process Clause, according the Supreme Court) by targeting travelers based on their national origin or religion. But in the immigration context, the standard of review for equal protection claims is highly permissive. "Because the [executive order] involves federal government categorizations with respect to non-resident aliens," Gorton writes, "rational basis review applies." Under that highly deferential standard, a challenged policy passes muster as long as it is rationally related to a legitimate government purpose, a test that pretty much guarantees the policy will be upheld. "Under rational basis review," Gorton notes, quoting the Supreme Court, "a classification is permissible 'if there is any reasonably conceivable state of facts that could provide a rational basis.'"
Robart's comments during a hearing on Friday suggest his version of the rational basis test is more demanding. "When Robart asked the DOJ's Michelle Bennett how many foreign nationals of the seven countries targeted by the ban had been arrested on domestic terrorism charges since 9/11," reports The Stranger's Sydney Brownstone, "Bennett told the court she didn't know. Robart informed her that the answer was none." [His actual words, per a Seattle Times video of the hearing: "The answer to that is none, as best I can tell."]
That is not quite right. According to a review by Cato Institute immigration analyst Alex Nowrasteh, "six Iranians, six Sudanese, two Somalis, two Iraqis, and one Yemini" were "convicted of attempting or carrying out terrorist attacks on U.S. soil" from 1975 through 2015. Nowrasteh says at least half a dozen of those cases happened after 9/11. It is true, Nowrasteh says, that "foreigners from those seven nations have killed zero Americans in terrorist attacks on U.S. soil between 1975 and the end of 2015." That remained true last year, although there were two less serious attacks by people with Somali backgrounds. In September a Somali-American named Dahir Adan was shot and killed after attacking shoppers with a knife at a mall in St. Cloud, Minnesota. Ten people were injured. In November a Somali refugee named Abdul Razak Ali Artan was shot and killed after ramming people with his car and stabbing them with a knife at Ohio State University in Columbus. Thirteen people were injured.
While Robart overstated the case, it is accurate to say that people from the countries covered by Trump's order have been responsible for only a small share of terrorist activity and no deadly attacks in the United States, which casts doubt on the logic of his criteria. "You're here arguing on behalf of someone who says we have to protect the U.S. from these individuals coming from these countries, and there's no support for that," Robart told Bennett. Bennett replied that it's for the president to decide whether there is empirical support for his policy, and "the court doesn't get to look behind those determinations." To the contrary, Robart said, rational basis review means "I have to find fact as opposed to fiction."
I wish rational basis review meant that, but it is usually enough for the government to proclaim its good intentions. Trump's lawyers argue that the president is trying to protect Americans from terrorism, and the courts have no business second-guessing the means he chooses. If the rational basis test applies, the appeals court that reviews Robart's rulings probably will agree.
[This post has been revised to clarify what Robart got wrong about terrorism arrests.]
Addendum: Writing at The Volokh Conspiracy, Ilya Somin argues that Trump's order is unconstitutional because it discriminates against Muslims. Somin notes that "the Supreme Court has long recognized that a seemingly neutral regulation qualifies as unconstitutional discrimination if the true purpose behind it is in fact to target a specific racial, ethnic, or religious group." He adds that Trump will have a hard time showing a nondiscriminatory purpose because "the security rationale for the order is laughably weak."
