Margulies, Peter

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship3-16-2017The Revised Refugee Executive Order in theCourts: Detour or Speed-Bump?Peter 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 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 Revised Refugee Executive Order in the Courts: Detour or Speed-Bump?, Lawfare (March 16, 2017, 7:43AM),https://www.lawfareblog.com/revised-refugee-executive-order-courts-detour-or-speed-bumpREFUGEESThe Revised Refugee Executive Order in the Courts: Detour or Speed-Bump?By Peter Margulies  Thursday, March 16, 2017, 7:43 AMWednesday was an active day in the courts for President Trump’s Refugee Executive Order (EO). A U.S. district court in Hawaii issued aTemporary Restraining Order (TRO) blocking the revised EO issued less than two weeks ago. In addition, the Ninth Circuit, with ½ve judgesdissenting, declined to order an en banc rehearing on a Seattle district court’s TRO against the original EO. Judge Jay Bybee’s dissent (joinedby judges Kozinski, Callahan, Bea, and Ikuta) comes closest to the deferential note that I believe the Supreme Court will ultimately strikewhen and if it considers the revised EO’s legality. However, because of the substantial tailoring in the revised EO, the Supreme Court couldupheld EO 2.0 without embracing the broad deference urged in Judge Bybee’s dissent.First, some background on the revised EO (see Josh Blackman’s posts here, here, and here)): The revised EO exempts lawful permanentresidents (LPRs), current visa-holders (VHs), and noncitizens with approved refugee status—all of whom had reliance interests disrupted bythe original EO. The revised EO only affects foreign nationals abroad who are seeking visas ab initio. The Supreme Court has never held thatthe Constitution protects noncitizens in this context. The revised EO excludes Iraqis, makes Syrian refugees subject to a 120-day bar (not theinde½nite halt decreed by the initial EO), and deletes any mention of a priority for religious minorities.In the Hawaii case, Judge Derrick K. Watson found the revised EO’s careful tailoring insuf½cient to withstand the plaintiffs’ EstablishmentClause challenge. Unfortunately, Judge Watson paid no heed to the ill ½t between the varied factors that drive immigration decisions and theEstablishment Clause case law’s search for an intent to harm or help religion.   That heedlessness swims against the tide of Supreme Court precedent. In Kerry v. Din (2015), Justice Kennedy’s controlling opinion foundthat even the due process rights of U.S. citizen sponsors of visa applicants had to bow to the “facially legitimate and bona ½de” interest ofthe U.S. government in countering terrorism. In endorsing this ¾exible standard, Justice Kennedy cited Kleindienst v. Mandel (1972), in whichthe Court ½rst articulated the “facially legitimate and bona ½de” test. Mandel, which Judge Bybee cited repeatedly in his Ninth Circuitdissent, rejected a First Amendment challenge to the denial of a visa to a Marxist scholar whom U.S. citizens wished to hear speak in person.Mandel’s relaxed standard suggests that Judge Watson’s opinion will be short-lived.Rejecting Mandel’s teaching, Judge Watson second-guessed the security emphasis of the revised EO. The revised EO cites the armed con¾ictsthat have engulfed 5 of the 6 countries (Libya, Somalia, Sudan, Syria, and Yemen) subject to the country-wide pause in admissions. Becauseof those armed con¾icts, the EO concludes, a review of U.S. visa procedures is appropriate. According to the revised EO,  review isappropriate for the 6th country on the list—Iran—because that country has been a longtime sponsor of terrorism. In my opinion, these factsdo not present a persuasive policy case for the EO’s pause in admissions, for reasons that former senior Department of Homeland Securitylawyer David Martin states here. However, a given policy need not command a unanimous policy consensus to be “facially legitimate andbona ½de.” Indeed, the whole point of the “facially legitimate and bona ½de” standard, as Justice Kennedy reiterated in Kerry v. Din, is toensure that courts stay out of the policy debates that are the rightful province of the political branches.The need for a measure of judicial restraint on immigration pertains to Establishment Clause challenges, as well as those like Mandel’sbased on free speech. Ferreting out discriminatory intent is relatively straightforward in traditional Establishment Clause cases such asLarson v. Valente (1982), in which the Court struck down a religious fundraising restriction obviously designed to placate state legislatorswho, in the words of one such lawmaker, were “hot to regulate the Moonies.” In contrast, immigration rules can entail a plethora of secular,neutral justi½cations, including national security, trade, and foreign affairs. In the face of such neutral justi½cations, judicial efforts to ½ndan intent to hurt or help a given religion are an ill-starred intrusion into the political branches’ prerogatives.In the Hawaii case, Judge Watson sought to ground his search for forbidden intent in then candidate Trump’s repeated calls for a Muslimban. However, the campaign speeches of any politician are a singularly weak reed for supporting the weight of Establishment Clausejurisprudence. Recall that Franklin D. Roosevelt, the patron saint of de½cit spending, ran as a budget hawk, decrying then President HerbertHoover’s ½scal extravagance. (See Julian Zelizer’s nuanced account, The Forgotten Legacy of the New Deal [abstract here]). Political candidatestake a multitude of different and sometimes contradictory positions, depending on the audience they’re addressing, the exigencies of thecampaign, or sometimes, it seems, even the time of day. Citing evanescent campaign speeches as de½nitive proof of governmental intentionsis a descent down a very deep rabbit-hole. The “facially legitimate and bona ½de” test thankfully blocks that dangerous slide intoincoherence.However, the antidote to Judge Watson’s ½nding the revised EO’s tailoring insuf½cient is not Judge Bybee’s view that no tailoring of theoriginal EO was even necessary. Whether based on due process or on the Immigration and Nationality Act’s own structure and purpose, theoriginal EO’s impact on LPRs and VHs was arbitrary and unlawful. Because the Trump administration wisely trimmed back the original EO,when (as it likely will) litigation surrounding the EO reaches the Supreme Court, the Court will not have to address the excesses of that orderor the chaos it caused. The Court can simply opt to respect the tailoring that the revised EO features. Unlike Judge Watson’s holding, thatresult will not hamstring future presidents. Unlike Judge Bybee’s untrammeled deference, such a result will also not license presidentialunilateralism. As a balancing of competing constitutional values, that’s not a bad place to stand.   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).

The Revised Refugee Executive Order in the Courts: Detour or Speed-Bump?

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The Revised Refugee Executive Order in the Courts: Detour or Speed-Bump?

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