Thursday, February 9, 2017

State of Washington v. Trump: Notes

"Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” - Larson v. Valente

I am currently reading through the 9th Circuit Court of Appeals' decision on the Trump Administration's Executive Order banning people from seven countries from entering the United States. The decision is incredible and exciting to read (if you are a legal junkie).

Below are my notes so far; I have, as always, attempted to keep them factual, but analysis always injects some opinion. I would love to discuss other interpretations.

  • Government - the President and Executive Branch
  • States - Plaintiff states of Washington and Minnesota
  • TRO - Temporary Restraining Order (the thing that is preventing the immigration ban from being enforced)
Top Line:
  • The Government presented surprisingly weak and sporadic arguments; going so far as to misquote clearly inapplicable case law.
  • "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile."
  • The Executive Order did not provide for proper due process (the fifth amendment) and the Government did not even attempt to argue that it did.
  • The Government argued that those affected by the ban did not have any rights under the Due Process clause.
  • It is well established case law that all persons in the United States are entitled to Due Process; this also includes certain people abroad.
  • The Government holds the burden of proof
  • The court specifically notes the slippery nature of the administration and rejected revisions by White House counsel as sufficient. Basically, the court believes the Government could do take-backsies on anything that isn't in the actual Executive Order.
  • It isn't really possible to grant a halt to the immigration ban in only one state while leaving it in place in other states--unless we build a wall around every state border. The Government actually argued that would be possible without giving any specifics.
  • Endorsement (or exclusion) of a specific religion sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’
  • The Government could not cite evidence that the Executive Order satisfied any urgent need. Instead, the Goverment said that the court shouldn't even review the order.
Full notes:
  • Arguments were heard over the phone--an indication of the urgency of this case.
  • The substance of the case is in violations of the 1st, 5th, and 10th amendments and whether the Temporary Restraining Order (TRO) should stay in place while the case is litigated.
  • The State of Washington and Minnesota were granted standing because their students, faculties, and staff were affected by the immigration order.They are granted 'third-party' standing as a litigant that is "'fully, or very nearly, as effective a proponent of the right' as the third party; or when the third party is less able to assert her own rights."
    • The states are allowed to represent their own citizens, who have come to adverse harm
  • "The Executive Order prevents nationals of seven countries from entering Washington and Minnesota; as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave...the Government does not argue otherwise"
  • The Trump Administration argued that the President has "unreviewable authority to suspend the admission of any class of aliens."
    • This argument is literally unprecedented; traditional arguments note that the Judiciary should give wide deference to the Executive on matters of immigration policy, but no case law has ever supported the notion that the Judiciary cannot even review the constitutionality of a case.
    • "The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections."
    • "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy."
    • "the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context."
  • The government's argument that the court shouldn't even review the case is based on a quote taken out of context that "are plainly not subject to the Mandel standard."
  • Ex parte Milligan, 71 U.S. 2, 120-21 (1866)  “The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”
  • United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”
    • Those who would sacrifice liberty for security receive neither.
  • The Court reviewed four questions in order, and the Government failed to clear even the first two:
    • 1. Whether the Government would likely succeed in a full case
    • 2. Whether the Government "will be irreparably injured"
  • "The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims."
  • "The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause."
  • It is the Government's burden to show that it is likely to succeed in this case.
  • "The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982)."
  • White House counsel issued guidance, but that guidance was insufficient and lacked proper authority. "The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely."
  • "The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings"
  • "There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do"
  • "We decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy."
  • "The First Amendment prohibits any “law respecting an establishment of religion.” U.S. Const. amend. I. A law that has a religious, not secular, purpose violates that clause,Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), as does one that “officially prefer[s] [one religious denomination] over another,” Larson v. Valente, 456 U.S. 228, 244 (1982). The Supreme Court has explained that this is because endorsement of a religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). The Equal Protection Clause likewise prohibits the Government from impermissibly discriminating among persons based on religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978)."
  • The States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order.
  • "Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument" 
  • “It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”( Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)
  • Case law that I really want to read more of:
    • Zadvydas v. Davis
    • INS v. Chadha
    • Kleindienst v. Mandel
    • United States v. Robel
    • Larson v. Valente
    • Melendres v. Arpaio