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The Refugee EO in the Ninth Circuit: Rights, Wrongs, and Remedies

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship2-8-2017The Refugee EO in the Ninth Circuit: Rights,Wrongs, and RemediesPeter MarguliesRoger Williams University School of Law, pmargulies@rwu.eduFollow this and additional works at: http://docs.rwu.edu/law_fac_fsPart of the Immigration Law Commons, and the President/Executive Department CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, The Refugee EO in the Ninth Circuit: Rights, Wrongs, and Remedies, Lawfare (Feb 8, 2017, 9:08PM),https://www.lawfareblog.com/refugee-eo-ninth-circuit-rights-wrongs-and-remediesREFUGEESThe Refugee EO in the Ninth Circuit: Rights, Wrongs, and RemediesBy Peter Margulies  Wednesday, February 8, 2017, 9:08 PMStaying a Temporary Restraining Order (TRO) is an arcane subject that took on new urgency Tuesday at the Ninth Circuit thanks toPresident Trump’s Refugee Executive Order (EO). The court heard oral argument on the government’s request to stay a lower court’s TROhalting the EO’s implementation (audio here). As the Ninth Circuit explained in Golden Gate Restaurant Ass’n v. San Francisco (2008), the testfor a stay hinges on common sense: factors include the applicant’s likelihood of success on the merits, the balance of hardships to theparties, and the public interest. Common sense supports the government’s suggestion (discussed in my earlier post here) that the NinthCircuit modify the TRO to cover only current nonimmigrant visa-holders (VHs) previously admitted to the United States and not noncitizenswho have not yet been admitted. The former have clear expectation interests that the EO disrupted; the latter do not. However, the chaosthat attended the EO’s implementation may cloud the prospects for this common-sense solution.Before I dive into the Ninth Circuit’s arguments on the stay factors, I’ll brie¾y summarize the overall direction of the hearing. The judges onthe panel appeared to agree that Washington State had standing to challenge the EO, either as parens patriae on behalf of its residents or inits proprietary capacity as the operator of institutions, such as universities and hospitals, that the EO affected. On the merits and remedialissues, Judge Michelle Friedland’s questioning of Department of Justice (DOJ) attorney August Flentje was vigorous. Moreover, JudgeFriedland’s questions to the Washington State Solicitor General Noah Purcell indicated that she was open to the EO challengers’ Establishment Clause argument, which I critique below. Judge Richard Clifton, in contrast, seemed to believe that Washington State had notdemonstrated the manifest intent to harm a religious group that the Supreme Court’s Establishment Clause jurisprudence requires. JudgeWilliam Canby was robust in questioning DOJ attorney Flentje on the standing question, but largely kept his own counsel on the merits,although at one point he pointedly asked Flentje who had the burden of proof on the stay application (the government does). Now on to theargument’s application of the stay standard – a mainstay of the practicing lawyer’s craft with  momentous rami½cations for those affected bythe EO.    I. Likelihood of Success on the MeritsAs Judge Clifton’s questions appeared to suggest, the government has a strong case on the merits regarding noncitizens who have not yetbeen admitted to the U.S., including those now applying for visas. While current nonimmigrant VHs may well have statutory rights, neitherthe Immigration and Nationality Act (INA) nor the Constitution offers relief in this case to noncitizens not yet admitted to the UnitedStates. Since I addressed Equal Protection and Due Process in my earlier post, the Establishment Clause is worthy of analysis here.Establishment Clause precedent bars government action 1) taken with the intent to either  harm or help a particular religious group, when2) that action is not tailored to a compelling government objective and 3) has the effect of helping or harming the group. In Larson v. Valente(1982), a case relied on by Washington State in its challenge to the EO, the Court noted that the government action at issue could violate theEstablishment Clause even if the measure did not expressly mention a particular religious organization. Accordingly, the Court struck downa Minnesota law that exempted religious groups from onerous state registration requirements only if the group could prove that it receivedmore than 50% of its contributions from members. The Court found that legislators were seeking to impede the religious practices ofparticular groups, such as the Uni½cation Church, that rely on soliciting donations from the public. As evidence, the Court cited remarks byone legislator, who observed that lawmakers were “hot to regulate the Moonies.” The Court also found that the challenged measure was nottailored to achieve any compelling government objective, such as promoting transparency in fundraising and curbing charitable fraud.As Judge Clifton noted, the exigencies that the government regularly confronts in the conduct of foreign policy makes it dif½cult to provethe intent that the Establishment Clause requires (along the same lines, see Judge Gorton’s decision, Louhghalam v. Trump, in MassachusettsDistrict Court here). Immigration decisions address a spectrum of factors, including national security, trade, and managing bilateralrelations with other states. United States armed forces are participating in armed con¾icts in ½ve of the seven states covered by the EO (Iraq,Libya, Somalia, Syria, and Yemen). A sixth state, Sudan, has been the site of a bloody armed con¾ict that some have called genocidal.Congress has classi½ed the seventh state, Iran, as a state sponsor of terrorism.In part because of these disturbing developments, the Obama administration designated each country as an “area of concern” pursuant to 8USC 1187(a)(12), requiring special scrutiny for individuals who had visited those countries, even if those individuals would otherwise beentitled to enter the U.S. without a visa. Admittedly, the Obama administration’s designation and the manifest turbulence in each of theseven countries do not, as my previous post noted, deprive previously admitted VHs of all statutory rights. However, those factors make itdif½cult to attribute to the EO the intent to injure religion that Supreme Court cases like Larson demand. Judge Clifton also indicated that the scope of the EO is inconsistent with the intent to target Muslims. While the EO addresses immigrationfrom seven majority-Muslim countries with a total population of 215 million, that is less than 15% of the 1.6 billion Muslims in the worldtoday. One could reasonably expect that an order targeting Muslims would be far more comprehensive. This would not let the governmentoff the hook if the EO had expressly targeted Muslims (E.g., “This order applies to 15% of Muslims today, and we will consider expansion ofthe order to more Muslims as needed”). In that event, the relatively modest percentage of Muslims covered today would take a back seat tothe facial inclusion of that particular faith. However, the EO does not contain such express language, and courts mindful of the executive’sbroad latitude in foreign affairs will be reluctant to read such language into President Trump’s order. (That said, Carrie Cordero offers aninsightful critique here of the framing of the national security arguments by the government in the EO case.)In sum, the Establishment Clause is the only constitutional provision at issue here that operates as a structural check on government,independent of the persons actually affected by the EO. The government is likely to prevail on the merits. Therefore, the EstablishmentClause claim here does not support the overbroad TRO of the court below, which also covers noncitizens who have never been admitted tothe United States.   II. Balance of HardshipsThe balance of hardships also favors limiting the TRO to previously admitted VHs. Permitting the entry of all previously admitted VHs andthe travel abroad of VHs already in the U.S. would largely alleviate the hardship suffered by Washington State, VHs, and VHs’ families.Student visa holders would be able to enroll at their respective institutions and attend classes. Medical residents would be able to resumework at hospitals. Employees would be able to resume their jobs, and travel as needed for business. A modi½ed TRO would make it easy toachieve these salutary results: the Ninth Circuit would simply direct the government to restore the pre-EO status quo as it applied to thesenoncitizens. III. The Public InterestWith these modi½cations to the EO in place, the public interest prong squarely favors the government. The Supreme Court has held that indetermining the public interest for purposes of crafting relief, national security considerations should be paramount. In Winter v. NaturalResources Defense Council, Chief Justice Roberts, writing for the Court, held that the public interest in military training and readinessovercame concerns about compliance with procedural requirements in environmental law, such as the ½ling of environmental impactstatements. Some scholars have critiqued Chief Justice Roberts’ opinion as being unduly deferential (see my colleague Jared Goldstein’spiece here). However, such deference is the touchstone of the current Court, which will not be inclined to second-guess the judgments madeby the President. Moreover, a TRO that protects previously admitted VHs will not yield negative externalities that injure the public interest:noncitizen medical doctors will be able to treat patients, teachers will be able to teach, and students will be able to inform classroomdiscussions with their U.S. citizen and LPR peers (including discussions about the EO!). ConclusionAs the discussion above shows, the stay standard supports issuance of a modi½ed TRO that protects previously admitted VHs. However, tofashion this reasonable relief, the Ninth Circuit will need to act despite the bitter taste instilled by the government’s headlong rush toimplement the EO. The creation of chaos is never a good opening bid for judicial solicitude.Giving voice to this sentiment, Judge Clifton asked why the government couldn’t simply modify the EO itself, and then seek relief from thebroad TRO issued by the court below. In response, the Justice Department’s lawyer noted that the government’s reply brief had expresslyoutlined how the court could get to this result. Although Washington State countered that such an order would be dif½cult to implement,that isn’t necessarily the case: resuming the status quo ante would be relatively straightforward, since that is exactly what Department ofHomeland Security personnel have been trained to do. Crafting such a remedy would restore order to a highly volatile situation, and allowfurther litigation to proceed in a methodical manner. Given the chaos left in the EO’s wake, that outcome would be in the best tradition ofequitable relief. Topics: Refugees, ImmigrationPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

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The Refugee EO in the Ninth Circuit: Rights, Wrongs, and Remedies

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