The Volokh Conspiracy
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One of the main is issues at stake in Trump v. Hawaii, the Travel Ban 3.0 case currently before the Supreme Court, is whether President Trump's executive order temporarily barring entry by citizens of six Muslim-majority nations is unconstitutional because its purpose is to discriminate against Muslims, in violation of the First Amendment. The Fourth Circuit court of appeals ruled against this latest version of the travel ban on that basis.
The administration's main defense against this that federal government policy on immigration is largely exempt from the constraints of the Bill of Rights that limit all other exercises of federal power.
On Friday, fellow legal scholar Michael Mannheimer and I filed an amicus brief that challenges the administration's position on this crucial issue. We wrote the brief on behalf of ourselves and several other constitutional law scholars from across the political spectrum. The other signers include Professor Gabriel Chin of UC Davis (one of the nation's leading experts on the constitutional law of immigration), Shawn Fields (Campbell University), Irina Manta (Hofstra), Cassandra Burke Robertson (Case Western), and Erin Sheley (University of Calgary). Our brief explains why the Bill of Rights limits federal power over immigration no less than any other exercise of federal power, and why this conclusion logically follows from the text, structure, and original meaning of the Constitution. Here is a summary of our argument from the brief itself:
The Bill of Rights was added to the Constitution, not just to protect individual rights, but also to impose structural constraints on the federal government. These constraints sharply curb the powers granted in the unamended Constitution…. Thus, Petitioners' claim of nearly unlimited authority over immigration that is immune from judicial review has it backwards. No federal power can override the Bill of Rights. To the contrary, the Bill of Rights limits federal power in every sphere, including immigration.
The Establishment Clause was originally undertood as preventing federal regulation of religion in order to preserve state autonomy in this sphere. Prior to the enactment of the Fourteenth Amendment, a State could establish a state religion, favor some religions over others, or adopt a policy of nondiscrimination….
The authority of the States in the domain of religion has now been curtailed by the Fourteenth Amendment and its application of the Bill of Rights to the States. But the constraints the Establishment Clause imposes on the federal government remain in their original form: The federal government can neither establish a national religion, nor engage in discrimination based on religious animus….
The [travel ban] Proclamation, motivated by bias against Muslims, violates the Establishment Clause by disfavoring adherents of a particular minority religion. And because the Establishment Clause is a general structural limitation on the power of the federal government, the Proclamation cannot be enforced even against foreign nationals abroad.
Part I of the brief explains why the text, structure, and original meaning of the Bill of Rights imposes limits on all federal power, without any special exemption for immigration policy. The text of most of the Bill of Rights - including the First Amendment - in no way distinguishes between different areas of policy or between aliens and citizens. We also explain how the Founding generation routinely applied the Bill of Rights as a constraint on US government actions abroad, including those directed at non-citizens, such as suspected pirates captured on the high seas.
While the Supreme Court, in the late nineteenth century, ruled that Congress has "plenary" power over immigration, the federal government also has plenary authority over other fields, such as the regulation of interstate commerce. Yet, as the brief explains, that does not give it unconstrained authority to use that power in ways that violate the Bill of Rights:
The claim that the federal government's "plenary power" over immigration gives it the authority to override the constraints of the Bill of Rights is flatly inconsistent with the way the Supreme Court has treated other federal powers, which are all subject to the Bill of Rights, regardless of how "plenary" they otherwise are. For example, Congress has long been understood to have plenary power to regulate interstate commerce. That authority is "plenary as to those objects" to which it extends. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824). Yet it does not follow that the federal government has the power to forbid the use of interstate commerce to disseminate ideas critical of the President, or that it can bar interstate trade carried on by Muslims or Jews.
Even the power over national defense – as fundamental and essential a federal power as any – is subject to the constraints of the Bill of Rights….
Nor does it matter that aliens do not have a constitutional right to enter the United States. There is equally no constitutional right to engage in interstate commerce that Congress chooses to forbid. It does not follow that Congress can restrict interstate commerce in ways that violate the Bill of Rights, including discrimination on the basis of religion. Similarly, the Supreme Court has ruled that Americans have no constitutional right to Social Security benefits. Yet it would still be a violation of the First Amendment for Congress to pass a law restricting Social Security benefits to Christians, or denying them to adherents of some disfavored minority religion.
The brief further explains (pp. 20-25) why treating immigration policy as subject to the Bill of Rights indicates that it is perfectly permissible for courts to consider President Trump's numerous statements indicating that his various travel ban policies were intended to target Muslims. Such analysis is standard practice in other cases involving pretextual discrimination, and there is no reason to treat this one differently. Shawn Fields, one of the brief's signers, is the author of an excellent new article that explains in detail why judicial consideration of campaign statements is both appropriate and necessary in cases like this one.
There is a widespread perception that Supreme Court precedent requires courts to forego normal application of the Bill of Rights in immigration cases. But, as we show in the brief (pp. 12-20), that perception is unfounded. The cases cited by the administration either apply the same constitutional standards as those that prevailed in domestic litigation at the time they were decided, deal with issues of procedural due process which are necessarily different from those involving substantive rights, or involve situations where the plaintiffs did not challenge the general principle that the government could expel aliens on the basis it asserted, but merely questioned the application of the rule to specific individuals.
For example, the administration relies on a 1952 case in which the Supreme Court allowed the deportation of aliens because they were members of the Communist Party. But, at that time, the Court allowed even US citizens to be imprisoned for membership in the Party. In the early 1950s, Communist Party membership was effectively not protected by the First Amendment at all. In Kleindeinst v. Mandel (1972), the case that the administration and its supporters cite the most, the plaintiffs did not challenge the constitutionality of the law under which an alien could be barred for advocating "the economic, international, and governmental doctrines of world communism," but merely took issue with the Attorney General's refusal to grant a waiver to the Belgian Marxist Ernest Mandel. If it was constitutional to exclude communists generally, it was also constitutional to deny a waiver to any specific individual.
It is also noteworthy that the Supreme Court has never upheld - or even considered - a federal policy intended to restrict immigration by discriminating on the basis of religion. Thus, there is no precedent authorizing the president to engage in the kind of discrimination at issue in the travel ban case. To the extent that some precedents nonetheless can be read as giving the federal government unwarranted authority to ignore the Bill of Rights in immigration policy, there is good reason for the Supreme Court to limit or overrule them (pp. 18-19).
Regular Volokh Conspiracy readers may notice that our Travel Ban 3.0 brief is similar to the one we filed in the earlier Travel Ban 2.0 cases, which were eventually dismissed as moot by the Supreme Court after that executive order was superseded by Travel Ban 3.0. That is because the latest iteration of the travel ban has virtually all the same defects as its predecessors, of which it is a direct extension. In some respects, it is even worse. For example, it is permanent, not temporary. So the administration can no longer claim it is a limited measure supposedly justified by the need to review vetting procedures. Our brief explains why the addition of North Korea and a few Venezuelan government officials to the travel ban does not materially alter the situation (pp. 35-36), and also why the travel ban is appropriately understood as an effort to target Muslims, even though it does not cover all the Muslims in the world:
An entry ban motivated by animus against Muslims does not become any less so simply because it does not cover all the Muslims in the world, while including a few non-Muslims. Consider the case of a federal agency head who has repeatedly declared that he would refuse to hire… African-Americans. He cannot make his racially motivated hiring practices immune to constitutional challenge by instead refusing to hire anyone who attended a Historically Black College or University… even though not all African-American job applicants attended such schools and a few HBCU alumni are actually white.