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Sunday, February 05, 2017

Focusing on temporary visas as protected "liberty interests" in the challenges to Trump's Immigration EO

The indefatigable Josh Blackman has a post on the "statutory legality" of President Trump's Trump's Executive Order on immigration. Josh focuses on whether 8 U.S.C. section 1182(f) authorizes the E.O., setting aside questions of the E.O.'s constitutionality. Unsurprisingly, he finds that section 1182(f) authorizes the E.O.'s denial of entry: As I noted in an earlier blog post, section 1182(f), a sweeping McCarthy-Era delegation of power to the President, pretty much authorizes everything by its plain terms. My only cavil with Josh's analysis is that the question of statutory interpretation here really cannot be separated from doubts about constitutionality. Such doubts can lead a court, Kent v. Dulles-style, to impose an upper limit on section 1182(f)'s blank check of power, "construing" it narrowly in light of non-delegation doctrine norms.

In order to analyze that hybrid constitutional/statutory question, however, one needs to focus on the most legally plausible constitutional interest at stake that would counsel for a narrow construction of the President's power. In my view, the EO's point of greatest vulnerability is its depriving long-term U.S. residents with non-immigrant visas of their interest in entering the United States and returning to their homes, families, workplaces, and schools. By contrast, the claim that the EO violates equal protection faces a steeply uphill battle. Disparate impacts on Muslims are not sufficient to trigger strict scrutiny (although the smoking gun of Trump's campaign speeches as well as Giuliani's boasting about creating a "Muslim ban" might suffice to shift the burden of proof). Moreover, nationality-based discrimination is still deeply embedded in our immigration system, despite the 1965 move away from national quotas. The Hart-Celler Act of 1965 still maintains per-country limits on immigration, and, more recently, national categories similar to those in Trump's EO were used to exclude immigrants from the visa waiver program in the Terrorist Travel Prevention Act. I do not see federal judges eager to overturn all such nationality-based distinctions in immigration law in the name of equal protection.

After the jump, I offer some thoughts about how and why the procedural due process angle, despite being the most effective argument against Trump's EO, has gotten short shrift from activists and lawyers. The current legal challenges to Trump's EO give higher priority to the equal protection argument, but the PDP argument deserves better billing: The latter provides our best opportunity to shift the constitutional status of nonimmigrant visa holders closer to the reality of their lives. The visa holders excluded by Trump's order are our neighbors and members of our community, not strangers bidding for admission to the USA for the first time. Lawsuits challenging this EO should hammer home that central point, seeking from the courts an unequivocal statement, never before given to my knowledge, that holders of temporary nonimmigrant visas have a protected liberty interest in entry back to their (temporary) homes, schools, and workplaces.

1. How and why the current challenges to Trump's EO shortchange the procedural due process argument

Most of the rhetoric against Trump's EO has zeroed in on its point of least vulnerability -- its disparate impact on aliens from majority-Muslim nations. This near-obsessive focus on discrimination is reflected in texts ranging in sophistication from the hashtag "#MuslimBan" to Washington State's motion for a TRO. That motion devoted a relatively paltry five pages (pages 14-19) to the procedural due process argument, focusing the balance of its 27 pages on the E.O.'s alleged nationality- and religion-based discrimination.

Why the relative neglect of the procedural due process angle? I am not an expert in immigration law, so this is not a rhetorical question: Readers should feel free to challenge the premise or offer alternative answers. I tentatively suggest, however, three reasons for the reluctance to focus on the liberty interest created by a nonimmigrant visa: 1) complexity of immigration law, 2) loose language in some SCOTUS opinions about limitless executive discretion, and 3) an ambition to challenge every aspect of Trump's EO rather than just its application to current visa holders.

First, the complexity of immigration law drives out serious generalizing about what it means to hold a nonimmigrant visa. There are dozens of types of visas, and the alphabet soup of names ranging from the familiar (e.g., F-1 student visas, H-1B visas) to the exotic (J visas for au pairs, "Australian professional specialty" E-3 visas, NAFTA visas, NATO visas, and the like) tends to drive away all but the specialists. Small wonder, then, that we are tempted to throw up our hands when asked to bestow a general constitutional status on all such "aliens."

Second, there is a lot of loose talk in judicial opinions about "aliens'" admission to the USA being a "privilege," not a "right." The DOJ brief quotes the usual suspects: Knauff v. Shaughnessy's statement, for instance, that “[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”

Third, an argument that current holders of non-immigrant visas have a liberty interest in such visas will do nothing to protect applicants for admission, from refugees to those applying for asylum. If one wants to challenge these other applications of Trump's EO, one will need some sort of anti-discrimination theory.

2. Why and how a procedural due process argument on behalf of non-immigrant visa holders is viable and worth making

These three reasons are not, however, powerful arguments for short-changing a procedural due process argument.

Consider, first, how immigration law, despite its complexity and judicial rhetoric about executive discretion, has evolved to be more like any other area of statutory law. As Kevin Johnson notes in an outstanding article, the most recent round of SCOTUS decisions seems to point to a new era of immigration law unexceptionalism. SCOTUS lately treats immigration statutes pretty much like any other statute: Agencies have to give reasoned explanations (Judulang), retroactive application is disfavored (Vartelas), grounds for removal are construed based on plain language without deference to the agency (Carachuri-Rosendo), and statutory limits on judicial review are strictly construed (Kucana).

As the interpretation of immigration law converges with interpretation of other statutes, it becomes more natural to regard immigration entitlements as just another form of statutory entitlement, protected in more or less the same way as food stamps or housing vouchers. As Dick Stewart and Cass Sunstein argued a quarter-century ago, statutory entitlements can generally create constitutionally protected liberty interests if they are defined by reasonably specific standards and resemble private causes of action. Why, then, should not the visa entitlements created by immigration statutes be any different than the various entitlements to money, land, or licenses created by other laws?

Second, all of that rhetoric about "aliens" is a bit too over-general to bake any legal bread. As the Trump Administration's hasty retreat on lawful permanent residents indicates, at least some aliens have some sort of liberty interest in non-exclusion: Since Landon v. Plasencia, "green card" holders have been entitled to some sort of procedural due process before they are barred from re-entry after a short absence. If LPRs may not be subject to such a blanket exclusion, then why should others be so excluded when they also have have been lawfully admitted, resided here on the basis of a visa to engage in some substantial activity within the United States? David Martin made the case for a graduated system of membership fifteen years ago, noting that, with the 1996 transformation of the immigration laws, the distinction between "exclusion" and "deportation" is no longer the way that the law divides aliens between those who are community members and those who are not. Martin suggested that simple slogans about aliens' having no protected interest in entry no longer make sense. he is right: This EO litigation could be the moment to set the judicial rhetoric straight and recognize multiple degrees of attachment requiring multiple degrees of constitutional protection.

Finally, there is a huge benefit to officially recognizing the vast number of "aliens" who are, in fact, part of our community in reality. Formally "aliens," they are, in fact, our friends, employees, students, and neighbors. They have legitimate expectations to fair treatment; they have created homes, jobs, and families here in reasonable reliance on our laws inviting them to join our community. Litigation over this EO provides an excellent opportunity to nudge the courts into officially recognizing what has become unofficial reality: Broad generalizations tolerating the lawless treatment of "aliens" through pure executive discretion really are at odds with our social practices and increasingly even with SCOTUS decisions.

3. But what about section 1182(f)?

There remains, of course, that blanket delegation of power in 8 U.S.C. section 1182(f) giving the President unlimited discretion to "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" if "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." Why does this provision not give President Trump the blank check he needs to exclude every sort of alien by EO?

Here is where statutory interpretation meets the Constitution. It is plain that this language cannot be taken literally, or else the Trump Administration's retreat on excluding green card holders would not have occurred. Precisely because such a blanket delegation would plainly intrude on some important liberty interests, it needs to be qualified. The obvious analogy is Kent v. Dulles, in which the SCOTUS qualified an equally broad delegation to the Secretary of State to withhold passports. As I noted in my earlier post, it is no favor to executive power to treat every vague emanation from the White House as if it were a carefully deliberated policy, especially when the Emanator-in-Chief is a guy like Trump, assisted by Bannon as his Rasputin. Instead, courts would be wise to remember that the non-delegation doctrine exists as a canon of construction that can be used to trim back delegations when they are used in ways patently inconsistent with the national interest.

Without overthrowing any useful presidential discretion, a court could hold that section 1182(f) cannot authorize the President to sweep away the protected liberty interests of admitted aliens who hold visas unless the President makes some minimal effort to explain why the affected class of excluded aliens creates some distinctive risk to the nation. Under even the most deferential review, Trump's EO is likely to fail such a test. It makes no sense to say that aliens who normally reside here permanently as our classmates, co-employees, and neighbors but who happen to be abroad on short visits to perfectly stable nations like the UK or Canada should suddenly be excluded simply because the nation from which they originally hailed but did not visit is either a failed or terrorism-sponsoring state. The under-inclusiveness of this EO is a sure sign, therefore, that it is more a fulfillment of a campaign threat than an effort to prevent some imminent harm. If there really were some difficult-to-detect and imminent threat arising from the presence of Yemenis, Libyans, and so forth, within U.S. borders, then surely the Trump Administration would be making some more dramatic effort to round up and interrogate the medical students, grandmothers, NBA stars, and a host of other aliens who decided not to go on a winter holiday vacation.

The lack of any new information about risks is another key sign that this EO's claim to protect against imminent harm is a fraud. Past presidents have invoked their section 1182(f) power to respond to new facts or deal with specific crises -- say, a build-up of Cuban refugees at Guantanamo Bay. Trump can point to nothing whatsoever suggesting that a blanket ban on nonimmigrant visa holders is needed now -- no new internet chatter that F-1 student visa holders from Syria are plotting to make a dirty bomb, no sign that H-1B visa holders from Iraq are somehow moonlighting as ISIS operatives. The completely blank factual record, beyond campaign slogans, indicates that this EO is Bannon's trolling of liberals and Trump's fantasy of playing the role of a lawlessly decisive George Patton. Indeed, even Trump's campaign rhetoric never suggested that persons currently residing in the country on temporary visas should be thrown out: He talked only about walling out "aliens," not kicking out immigrants. This EO's effect on visa holders who happen fortuitously to be on a visit outside the USA, therefore, lacks even an electoral mandate.

I do not suggest that the process due to visa holders will be very extensive. If Kennedy's concurrence in Kerry v. Din is any indication, such process can be remarkably truncated. We can dicker over the details of such process in the years to come. For now, it is essential finally to get the courts on board with the simple proposition that, absent some minimally plausible account of an emergency, some sort of individualized process is due. Trump and Bannon have given no such minimally plausible account, so the way is clear for the Ninth Circuit and SCOTUS to establish the idea of visas as a protected liberty interest without overthrowing any deep tradition of executive discretion in controlling immigration.

Posted by Rick Hills on February 5, 2017 at 03:34 PM | Permalink


So all Trump has to say is, "We have classified intelligence that cells from these countries may use visas to carry out attacks on this country. Just look at France."

Posted by: YesterdayIKilledAMammoth | Feb 5, 2017 4:29:46 PM

I am mostly sympathetic to this, but will add that there is a fairly strong textual reason for treating lawful permanent residents ("green card holders") differently from those holding non-immigrant visas. Under INA 101(a)(13)(A), we learn that "admission" means "the lawful entry of the alien into the United States after inspection and authorization by an immigration official.", and by 101(a)(13)(C), we are told that, "An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for the purposes of the immigration laws unless the alien... (a bunch of stuff that's not relevant under INA 212(f))

212(f), where the executive order purports to find its authority, applies to "suspension of entry". But, if a returning LPR isn't seeking entry, then it's not clear that this could be "suspended" under the power of 212(f). (I assume that this is why DHS didn't want to apply the EO to LPRs, and caved very quickly on this point, in addition to it being unpopular.)

I agree that there are many other interests and rights - held by non-citizens and also, as I have argued, current citizens that are infringed by this executive order. I am a bit less optimistic that language like this, from Ex Rel Knauff, "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." (338 U.S. 537, 544 (1950)" will be ignored, though of course I'd be very happy if Kevin Johnson is correct about the evolution of immigration law towards being treated more as normal law.

Posted by: Matt | Feb 5, 2017 4:37:28 PM

Thank you for bringing some much needed light to the discussion, which has had a lot of heat. The ban is awful for any number of reasons, but proving that it is illegal is much harder to do, and the angry articles that paper my Facebook wall provide little way forward to actually solving the problem.

I think you are right that the most likely area is long term visas, and I agree with you that "settling" for that will not make opponents happy. So, I can see why folks swing for the fences, but I think they need to have a backup plan for when this hits the appellate court.

However, I am not sure I agree with the green card point. The definition of lawful permanent resident in INA 101(a)(13) makes clear that lawful permanent residents do not seek admission under the immigration laws. My view is that "entry" under 1182(f) simply does not apply to green card holders, and thus it's not the constitution that's limiting 1182(f), but the statute itself. Two consequences flow from this: 1) I think green card holders have an 1983 claim (though I suspect qualified immunity would kick in) and 2) you can't use it as an example of constitutional limitations - you have to make other arguments on the due process side.

Posted by: Thank you | Feb 5, 2017 4:50:11 PM

Kent v Dulles dealt with the issuance of *passports* to *citizens*, whereas the Trump executive orders deny *visas* to *non-citizens*. You don't have to be Ephram Nestor to realize the difference. Not only was he deported, but his Social Security payments blocked.

Posted by: M. Rad. | Feb 5, 2017 9:58:50 PM

Time to change the blog's motto: "Another partisan hack website since 2015."

Posted by: YesterdayIKilledAMammoth | Feb 5, 2017 11:45:09 PM

"Not only was he deported, but his Social Security payments blocked."

The opinion explained why he lost his case, but it wasn't because, full stop, he was an alien. For instance, an Establishment Clause argument has been raised here. The fact he was an alien wouldn't have justified only deporting Catholics.

Posted by: Joe | Feb 6, 2017 12:50:11 AM

Rick: I agree with much of what you write in this excellent post, but one thing confuses me: The framing of this as a "procedural due process" question. (By the way, although you claim the DP argument is being "neglected," it's actually the lead argument in Washington's CTA9 brief, and has also had pride of place in other plaintiffs' briefs, too.) By the end of the post, what you appear to be arguing for is "some sort of *individualized* process," even if it is only "remarkably truncated." But what good would that do? As long as the substantive criterion for exclusion (for the first 90 days) is that the alien is from one of the seven nations, adding a bit of process will not affect the outcome--exclusion. And *after* the first 90 days, Trump is proposing to insist upon *robust* process--his "extreme vetting"--but that's the problem, not the solution.

Earlier in the post, you appear to getting at something different -- not the need for individualized process, but the fact that the basic discrimination in the E.O., between aliens from the seven identified nations and those from all other nations, is itself irrational, or worse. "The EO's claim to protect against imminent harm is a fraud." Exactly. (The powerful declaration of former officials filed tonight merely articulates what *everyone* agrees. It will not be difficult to convince every judge in the nation of the truth of that statement.) You suggest the problem is that the President himself has not made "some minimal effort to explain why the affected class of excluded aliens creates some *distinctive* risk to the nation." But he did make a *minimal* effort, and DOJ's brief stresses that he didn't pull the seven nations out of the blue--he piggybacked on their designation for exclusion from the visa waiver program in the Obama Administration, which was in turn based on at least the minimal finding that there is some unusual terrorist activity occurring in those seven nations.

The problem is that such a minimal effort does not suffice -- is not even close -- to justify the harms effected by this E.O. (not only to liberty interests, and not only to our economy and universities, but also to national security and U.S. diplomacy around the world), or (as you stress) to lead any sane person to think that section 3(a) will address any real problems not already adequately covered by current law and practices. That is to say, in CONLAW terms, section 3(a) *obviously* does not satisfy the rational basis test. Nor would it do so if Trump/DOJ offered a tad more by way of "minimal explanation."

We *typically* think of such a "no rational basis" argument as sounding in equal protection--it is, after, the criterion for distinction itself that can't be justified. But, of course, there is no equal protection clause in the Fifth Amendment, and so when the federal government acts arbitrarily, the Court has rightly pointed to the Fifth Amendment's due process clause: "Discrimination may be so unjustifiable as to be violative of due process." Bolling. As the Court put it in Flemming v. Nestor, a "patently arbitrary classification, utterly lacking in rational justification," is itself a denial of due process. And of course we have a *classic* case of that here, as in Bolling. But if this is what you're getting at--and I think it is, or at least ought to be--then it's really a question of so-called *substantive* due process, something that can't be cured by any "remarkably truncated" sort of individualized process, let alone by the "extreme vetting" that allegedly will follow come May.

The problem with this SDP argument, of course, as DOJ stresses in its brief, is that the Court has often announced, in the immigration context, that “when the Executive exercises [immigration authority] on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.” And the Court has typically been very reluctant to interrogate "bona fides" with any exertion in this context: It imposes a strong presumption that the classification is not a "patently arbitrary classification, utterly lacking in rational justification."

In this case, suffice it to say, I think that virtually every judge in the nation will agree with you, and me, and every thoughtful official ever to hold office, that this is the case in which the presumption is rebutted -- that this classification is patently arbitrary, and utterly lacking in rational justification. The fact that it's manifestly animated by religious discrimination against a disfavored minority (one that, to say the least, finds no favor in the current Congress) only serves to cement the conclusion. Cf. Footnote 4 ("prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry").

Whether the Court will be willing to actually *hold* that section 3(c) is utterly arbitrary, however--and thereby announce, in effect, that rational-basis review is not toothless, and that courts should more actively interrogate immigration classifications, even when they are adopted by someone other than Donald Trump--is another question entirely. Which is why I have been pondering, just as you have, whether the Court might not instead be more amenable to construing 1182(f) itself to impose certain limits on the POTUS's facially unlimited discretion (even if I don't share your predilection for reinvigoration of the nondelegation doctrine). Kent v. Dulles is *exactly* the right analogy. Indeed, in that case the Court construed narrowly *another provision of the very same McCarthy-Era McCarren Walter Act,* one that gave the Secretary of State the same apparently unlimited discretion that 1182(f) appears to give the POTUS. I hope this sort of argument is considered more seriously as the litigation goes forward.

Posted by: Marty Lederman | Feb 6, 2017 6:31:41 AM

Marty, thanks for those comments. It occurs to me that PDP might require some sort of SDP theory to be successful. After all, imagine that Kelley gives every visa holder a hearing to determine whether they are likely to commit acts of terrorism or domestic violence (the two evils Trump's EO declares that it seeks to prevent). But Kelley's guidance instructs CBP officers, a la Heckler v. Campbell's medical-vocational grid, to presume that visa holders from certain nations who meet certain fairly objective criteria must be presumed to be at risk for committing such acts. Surely, part of the judicial inquiry into "due process" would have to include some inquiry into whether such a use of rules to replace individualized adjudication was rational. (One can imagine that a victim of domestic violence from, say, Yemen might make an impressive case that national origin is a poor proxy for likelihood of engaging in domestic violence). That inquiry into minimal rationality of proxy "grid-style" criteria sure seems like an SDP inquiry.

I must rush to teach "public use" in land-use regulation right now, however, and cannot give the question the attention it deserves.

Posted by: Rick Hills | Feb 6, 2017 9:32:35 AM

About rational basis, let's suppose, although this is probably too high, that the President has intelligence and other information that leads him to reasonably believe that there is a 1/10,000 chance that at least one of the many persons this order excludes from the seven nations intends to commit acts of terrorism in the United States. That's probably an overestimate, but I don't know that it's irrational to believe there's a chance of that magnitude or that the President shouldn't get deference on whether there is. And if you like you can make the probability lower and I think the following still holds. If you accept a risk of terrorism of some low but non-zero magnitude as a premise, why does it fail rational-basis review to exclude the group that poses this low risk, unless rational-basis review is a form of cost-benefit review, however undemanding, which I hadn't thought it was? I had thought, though I may well be completely mistaken, that if what the government's doing has some rational relationship to a legitimate interest the government action is intended, or could be said to be intended, to serve, the government passes rational-basis review, even if what it's done is a grotesquely under- or overinclusive means of serving that interest, or even if the costs of what it's done vastly exceed the extent to which the legitimate interest's served. But see Prof. Lederman ("The problem is that such a minimal effort does not suffice -- is not even close -- to justify the harms effected by this E.O. (not only to liberty interests, and not only to our economy and universities, but also to national security and U.S. diplomacy around the world)... That is to say, in CONLAW terms, section 3(a) *obviously* does not satisfy the rational basis test.")

Posted by: Asher Steinberg | Feb 6, 2017 2:05:34 PM

That's exactly right, Asher: The Court has --rightly -- established a strong presumption that it should not second-guess the cost/benefit analysis, because it does not have the wherewithal to do so in this context, and it would be arrogant to do so when the political branches have so much more experience/access/understanding of the various considerations.

This is the rare case, however, in which the judges know, to a virtual certainty, that there's no reason to defer: in which all of the usual reasons for deference were not present/were circumvented; where an invidious purpose and/or delusion were behind the action; where the harms are profound; where reasonable minds don't really differ; and where the political process is not adequate to the task. In other words, the rare case in which the extreme adjectives they've reserved, in previous cases ("patently"/"utterly") are actually apt--this *is* the outlier case that they were trying to distinguish. (Rare, but not unprecedented--see, e.g., Bolling.) The question for the Justices, then, is not whether Section 3(c) satisfies the rational basis or Flemming standard -- I doubt any judge will think it does -- but what opinion to write. They could simply explain that this is the outlier case in which second-guessing is appropriate under the Fifth Amendment-- "patently"/"utterly"/etc. --where the means/end fit is so terrible that it is suspect and should not be respected (cf. Romer). But they might, for understandable reasons, not want to open that constitutional door. Alternatively, then, they could, as Rick and I have been suggesting, find a way to read 212(f) not to authorize this particular classification. (Cf. Hiroshi Motamura's 1990 YLJ article, showing how the Court has turned, time and again, to statutory solutions, rather than setting down constitutional limits, in such immigration cases.)

Posted by: Marty Lederman | Feb 6, 2017 4:59:05 PM

The difficulty is that there is no as applied challenge. The case against the E.O. is weak because the States arguing about intent. The intent is in the eyes of the beholder (pro or anti Trump).

Posted by: Patrick | Feb 6, 2017 10:54:36 PM

Oh, I actually find the reasoning that goes into this order rational and am mostly only troubled by all the costs it imposes, while doubting that those costs have anything to do with rational-basis review. The reasoning seems to go like this - and I apologize in advance if this sounds ridiculous or ill-informed, but that's how justifications in rational-basis review often sound.

First, the seven countries have a great many ISIS/Al Qaeda/Al Shabab combatants, and combatants in similar groups, and many others who are sympathizers - or, are Iran, which is its own kettle of fish. I don't think there's any serious doubt about whether these countries contain a great many residents who are violently hostile to the U.S.

Second, our screening may well be stellar, but perfection is impossible, and whatever its track record so far in screening refugees and others from these countries, the non-incidence of a terrorist event hardly proves it won't occur in the future or even that it's vanishingly unlikely to occur in the future. The nature of low-probaability events is that they don't happen for a long time until they finally do, and the probability of their happening is very difficult to measure with precision precisely because it's low. No one claims that the risk of admitting at least one terrorist from these countries is literally zero - even proponents of Syrian refugee admissions point to statistics to the effect that only 1/260,000 refugees is convicted of terrorism planning, which isn't nothing - and I think the President's going to and should get substantial deference on whether the risk is one in billions or one in thousands, the latter of which is quite rational to act on, bracketing costs.

Third, it's abundantly rational to eliminate low risks of terrorism, given the harms any one terrorist attack can cause. Indeed, it's abundantly rational to take overinclusive/underinclusive measures to eliminate miniscule risks of terrorism. How many attacks over how many flights have been avoided by the TSA rule on liquids on planes, with its various exceptions for duty-free shops and people who need orange juice for health reasons? How much risk has the TSA rule reduced that profiling and other methods wouldn't have? (Does it matter that the TSA rule was a response to one thwarted liquid-explosive attack? Would it matter if the EO were a response to one thwarted attempt by a Syrian terrorist to seek asylum?) I don't have any doubt that if some economic regulation avoided a risk of terrorism even smaller than the one being avoided here and in just an underinclusive and suspect way, e.g., the TSA bans sales of cologne in airports because passengers could spray them into pilots' eyes, while permitting sales of equally trivially dangerous products that compete with cologne for travelers' impulse-buy dollars, such a regulation would pass Lee Optical with such flying colors that we would say the airport cologne merchants had brought a frivolous suit.

So, contrary to what you say, I would be very surprised if there weren't a lot of judges who think this passes rational-basis review; the only question to my mind was whether the EO's costs can be weighed against its benefits. I wouldn't think they could in rational-basis review, or cases like Lee Optical would come out the other way (as would the cologne case given the losses in sales of cologne). Of course, if the standard here is rational-basis with some sort of bite, that's another matter, but I don't begin to see this case as Romer for Muslim immigrants. Romer facially targeted laws that facially benefited a certain community; the EO is facially neutral as between Muslims and non-Muslims, and it seems to me that if you're going to have a policy of this sort at all, the list of countries would inevitably be overwhelmingly majority-Muslim. People talk about the absence of Saudi Arabia and Egypt from the list, but they're majority-Muslim too, so I don't really see evidence of discrimination in the selection of countries.

Posted by: Asher Steinberg | Feb 7, 2017 8:30:27 PM

Asher: I think it's rather strange to think that consideration of "costs" would be viewed as outside the purview of rational-basis review. As you rightly point out, we can think of a billion and one government actions that would possibly reduce the risk of terrorism (or any other evil) at least *marginally.* Banning cologne sales. Or denying entry into the U.S. of all men, or all persons who are right-handed, etc. Building steel walls around all shopping malls. The examples are, of course, endless. If every single one of those countless rules would pass rational basis review -- simply by virtue of the fact that each and every one of them *might* prevent at least one terrorist act, or prevent just one other bad thing -- then rational basis review would be truly toothless, pointless. Bolling, Flemming, et al., however, indicate that the means chosen must not be "patently arbitrary" or "utterly lacking in rational justification." "Unjustifiable" (Bolling). That sort of analysis requires assessment of costs, tailoring, alternatives, etc., even if it is very deferential.

Posted by: Marty Lederman | Feb 8, 2017 7:56:35 AM

Marty: why do you think it was irrational for the current administration to exclude citizens of these seven countries from entry for 90 days, but rational for the past administration to exclude the same exact people from the visa waiver program? Any over-inclusiveness is exactly the same; the only difference is the degree of the burden imposed. But since when is that relevant to rational-basis review?

Posted by: Hash | Feb 8, 2017 11:56:28 AM

In particular, can you cite *any* rational-basis case where the SCt held that whether the fit was sufficient turned on the degree of the burden imposed, such that a fit could be rational for a minor burden but irrational for a major burden?

Posted by: Hash | Feb 8, 2017 11:58:29 AM

Rick --

I think the Heckler v Campbell analogy cuts the other way. In that case, the Court is very clear that any challenge to the rationality of the grid must come in the context of the promulgation of the grid. That is, you challenge the quasi-legislative determination in the context of the quasi-legislative proceeding and through a legal challenge to the result of that proceeding under the APA, etc. T

herein lies the rub for this case. Agencies have to follow the APA and can be challenged for adopting classifications that are arbitrary and capricious or otherwise in violation of law. Further, the courts have traditionally held that there are no Due Process rights in this context beyond what the relevant statutes provide. Here, the President is not an agency, and Congress has imposed no statutory constraint on the exercise of the President's discretion here, so no process is due.

I've never liked the implications of this framework, but it's what we've got. If the courts now want to say that there are due process rights that can be violated by an otherwise validly promulgated quasi-legislative action - that, in effect, in the absence of APA-like procedural requirements there is some irreducible constitutional minimum of process due -- I'm all for it, but that's a fairly radical departure from the status quo. It would also call into question all sorts of things that we take for granted (direct-to-final rulemakings, the various no-fly lists, etc.).


Posted by: Jonathan Adler | Feb 10, 2017 10:52:33 AM

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