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Wednesday, February 15, 2017

The Immigration Ban and the Establishment Clause

On Monday, the Hon. Leonie Brinkema of the Federal District Court for Eastern Virginia became the first judge to undertake more than a cursory analysis of the Establishment Clause questions surrounding President Trump’s travel ban. Rather than constrain herself to the four corners of the EO—as the Government urged—Brinkema rested her conclusion on “the highly particular ‘sequence of events’ leading to this EO and the dearth of evidence indicating a national security purpose.”

To justify this approach, she looked to McCreary v. UCLA, in which the Supreme Court self-consciously looked to the particular purpose and history of Ten Commandments displays in courthouses and public schools:

'[T]he world is not made brand new every morning.’ … Limiting the temporal scope of the inquiry ‘bucks common sense: reasonable observers have reasonable memories, and Supreme Court precedents sensibly forbid an observer to turn a blind eye to the context in which the policy arose.

With this in mind, Brinkema did a full inventory of the President’s campaign rhetoric, and concluded that the sequence of events leading up to the travel ban made it likely that the plaintiffs would succeed on the merits of their Establishment Clause challenge.

There is, of course, a threshold question here—which has undoubtedly given other courts pause in addressing the Establishment issue in detail: Does the First Amendment even constrain Congress and the President as they make immigration decisions? Brinkema says yes, pointing to language in Zadyvas v. Davis to the effect that “even in the context of immigration law, congressional and executive power ‘is subject to important constitutional limitations.’”   Thus, she goes on, “[m]aximum power does not mean absolute power. Every presidential action must still comply with … the constraints of the Constitution, including the Bill of Rights.”

I would just say, as an initial matter, that I’m not quite as optimistic as Judge Brinkema regarding either of these conclusions.

On the threshold question, Zadyvas created only a narrow procedural qualification on plenary power, such that the “ the government “must choose 'a constitutionally permissive means of implementing” that power. That is, it must ensure that proper procedural safeguards exist during the deportation process. That, I’m afraid, is a long way from concluding that the Bill of Rights constrains the government’s authority to establish substantive immigration policy.

And I have doubts about her Establishment Clause analysis, too. First of all, I’m not entirely sure that the so-called Endorsement Test—which governed McCreary is still the law of the land. We might need to do a head count in Town of Greece v. Galloway, and then prognosticate Justice Gorsuch’s leanings before we reach that conclusion. Second, even assuming Endorsement, this is not at all like the Ten Commandments on a courthouse wall, where one has to squint hard to find a conceivable secular purpose.  Here, despite Brinkema’s dismissal of the government’s evidence, there is at least a quite substantial national security interest in play. With this in mind, I think it hard to say that Trump’s “primary purpose” in the EO was to disadvantage a particular religion.

But leave all of that aside for a moment. What puzzles me about this (and earlier) orders is the complete lack of attention given to Sec. 5(e) of the EO, which expressly grants:

[T]he Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution.

To me, the Establishment Clause is therefore as simple as this: Does the EO establish that person’s religion is a factor used to determine their legal status or rights?   I think that a stated national interest in or preference for any religion when making “case-by-case” immigration decisions means that religious identity matters for purposes of the EO, and thus for folks individual rights.  If I’m right, I suggest the order fails even the most deferential formulations of Establishment doctrine.

Now, or course, all the problems around the threshold inquiry into plenary power remain--and this may explain the lack of attention given to this language.  After all, it applies to refugees, not even the visa holders that Brinkema addressed in her order.  But if the First Amendment does constrain this order, I think this is where it should do its work.


Posted by Ian Bartrum on February 15, 2017 at 04:40 PM | Permalink


Are we going to be like the lower court judges who decided Gobitis wasn't good law any more by head-counting and prediction?

Well, in a blog post, why not? I would toss in SALAZAR v. BUONO into the mix though, since Kennedy wrote the plurality. The "maybe not" side might get some help though not enough probably for a lower court judge to deem the earlier doctrine overruled.

But, clearly the matter needs more thought. Should be more opportunities for the courts to deal with the matter, perhaps taking into consideration the point cited at the end of the discussion.

Posted by: Joe | Feb 15, 2017 6:40:05 PM

Is there any precedent that a law which discriminates against a particular religion violates the Establishment clause?
All the cases which I am aware of involved Gov't (ostensibly) promoting a religion. Here, the EO does not promote any religion. Even assuming that it discriminates against Muslims, it does not promote any religion.

Posted by: biff | Feb 15, 2017 10:51:09 PM

Thanks for the thoughts. Joe: I'm not sure Salazar helps much, as it didn't address the Endorsement question (because the test was already the law of the case on appeal). Biff: There is a good deal of precedent suggesting that the government may not "disfavor" any religion, but I don't even think that's necessary here. The EO explicitly favors (or promotes) persecuted minority religions...

Posted by: Ian Bartrum | Feb 16, 2017 1:26:02 PM

Thanks. I don't think the opinion tells us that much, but had this:

"As a general matter, courts considering Establishment Clause challenges do not inquire into "reasonable observer" perceptions with respect to objects on private land. Even if, however, this standard were the appropriate one, but see" [then fwiw to me sends hint of where the Court would go if directly deciding matter]

It then says: "That test requires the hypothetical construct of an objective observer who knows all of the pertinent facts and circumstances surrounding the
symbol and its placement." A lower court judge very well might find this informative in some fashion as an expression of (for the time being) current doctrine.

Town of Greece cited the important role of history regarding legislative prayer. This might have some application in immigration policy but not sure how much the ruling tells us about the validity of the endorsement test.

Posted by: Joe | Feb 16, 2017 2:18:52 PM

Is it true that even on the most deferential formulations of Establishment Clause doctrine, a rule that favors religious minorities is unconstitutional? The rule applies to all refugee admissions, not just the seven countries, so it prefers Christians in some countries, Muslims in others, Jews in others, etc. If a public university sought to achieve religious diversity by treating an applicant's being a member of an underrepresented religion (Islam, Buddhism, Hinduism) as a plus, which sounds like a pretty salutary idea to me, I suppose a court would have to apply strict scrutiny, but is it at all obvious that such a preference would fail strict scrutiny? I would actually think it's pretty unlikely. The arguments that a preference like that would foster diversity of views and experiences would be much stronger than similar arguments for racial preferences that have succeeded, as a religion just is a set of views and subscribing to one almost necessarily entails a certain set of experiences that will differ from the experiences of members of other religions, while the link between race and views/experiences that differ from that of the white members of a student body, though real, can be attenuated in any given student's case. And what do you make of the fact that the definition of refugee in the Immigration and Nationality Act says that a refugee is, in part, someone who's being persecuted or has a well-founded fear of persecution on account of his religion? That's 8 U.S.C. 1101(a)(42). In application, this requires immigration judges, all the time, to assess whether someone claiming to be a member of a persecuted minority religion really is, and to give him favorable treatment if he is. The only difference that this order makes is that it gives a preference to refugees facing religious persecution over ones facing some other kind of persecution (formally it adds the requirement that one be a religious minority, but people persecuted for religious reasons usually are religious minorities), but to the extent a particular refugee's claim was one of religious persecution, whether a refugee could get asylum or not already turned on his religion.

Posted by: Asher Steinberg | Feb 16, 2017 4:22:40 PM

Very interesting thoughts, Asher. thanks. Especially the part about the definition of a refugee, although I think that this language treats all version of a refugee (secular and religious) alike--and thus is less problematic than the EO, which singles out "religious" refugees for special preference.

Two other thoughts: (1) I don't think the analogy to a public universities hiring preferences quite works, because here we are determining someone's legal status and rights, not whether a university can treat people differently for diversity purposes; (2) I don't think strict scrutiny enters into the Establishment Clause doctrine--government simply cannot coerce (under the most deferential standard) religious belief in any circumstance. But I could, of course, be wrong...

Posted by: Ian Bartrum | Feb 16, 2017 4:31:16 PM

Ian: All the precedent that I'm aware of that government may not disfavor religion is based on the free exercise clause, not the Establishment clause.
If singling out religious refugees for special preference is violative of the First Amendment's Establishment clause, the First Amendment's guarantee of Free Exercise of Religion is also, isn't it?
And RFRA is.
And the ministerial exception is.
And Title VII's protection against discrimination on the basis of religion is also.

Posted by: biff | Feb 16, 2017 6:59:35 PM

Sorry not to respond sooner, Biff. The Lemon test's second prong looks to whether government action "inhibits" any religion. And I'd have to know a little bit more about why you think a policy that favors particular religions (persecuted minorities) is analogous to the examples you provide--which protect religious exercise as a general matter.

Posted by: Ian Bartrum | Feb 22, 2017 3:04:41 AM

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