Analysis of IRAP v. Trump Part V: Judge Shedd and Judge Agee’s Dissents, and the Government’s Petitions for Certiorari and Applications for Stay

This is the final part of a five-part series on the Fourth Circuit’s recent en banc decision in IRAP v. Trump. Part I analyzed how the court considered pre- and post-inauguration statements. Part II analyzed how the court marshals the Supreme Court’s precedents concerning standing, reviewability of immigration decisions, and the Establishment Clause. In Part III, I analyzed the concurring opinions of Judges Keenan, Thacker, and Wynn. Part IV analyzed Judge Niemeyer’s dissent. Part V will analyze the dissents of Judges Shedd and Agee and discuss the possible paths ahead following the Solicitor General’s appeal to the Supreme Court.

National Security

Judge Shedd’s dissent, which was joined by Judges Niemeyer and Agee, charged that the majority opinion disregards the “potentially grave consequences for our country.” Citing the Supreme Court’s decision in Boumediene v. Bush (2008), Judge Shedd stresses that the “President and his national security advisors (unlike federal judges at all levels, lawyers, and commentators) have constant access to information ‘that may describe new and serious threats to our Nation and its people.’” The parenthetical is an unsubtle indictment of the majority, which, through a misreading of Mandel, performs what Judge Niemeyer refers to as “its own review of the national security justifications supporting the Order.” Remarkably, the en banc court privileges the determinations of “the comments of former national security officials made in an amicus brief” over the position of current national security officials.” Furthermore, Judge Shedd observes that many of these “former government officials . . . openly oppose this President.”

At bottom, the Fourth Circuit approach reflects some form of strict scrutiny, or what Judge Shedd calls a “least-restrictive means test.” In his view—which I share—this is not the appropriate standard of review for national security cases, especially where Mandel calls only for a facial review of the policy. (See Part IV.) And even if the President had an improper motive, the court still must conclude that those implementing the policy—the Attorney General and Secretary of Homeland Security—share that motive. The dissent notes that there is, however, no allegation of “bias on the part of his Cabinet officials,” nor have the plaintiffs challenged “the integrity of the Attorney General and Secretary of Homeland Security.” If this is so, Judge Shedd asks, then the lower court erred when it “essentially ignored or rejected their detailed national security advice to the President.”

It is worth stressing that even the dissenters in Mandel, who took a position against the government, emphasized how different the constitutional analysis would be if actual national security interests were at stake. “I put the issue that bluntly because national security is not involved,” wrote Justice Douglas. “Nor is the infiltration of saboteurs” involved. The Roosevelt appointee added that Congress did not vest the Attorney General with the “discretion to pick and choose among the ideological offerings”—that is, speakers on one topic or another—rather, “the Attorney General is left only problems of national security, importation of heroin, or other like matters within his competence.” Justice Marshall added, “Government may prohibit aliens from even temporary admission if exclusion is necessary to protect a compelling governmental interest,” such as [a]ctual threats to the national security.” These are lessons the Fourth Circuit should well consider.

Standing and Injury

Judge Agee’s dissent concerned justiciability. “In their haste to reach the merits of the plaintiffs’ Establishment Clause claim,” he noted, “my colleagues in the majority neglect to follow the longstanding and well-defined requirements of Article III of the United States Constitution.” For reasons I discussed in my prior post, some of the plaintiffs have suffered a cognizable Article III injury, but to reach that result the majority’s analysis goes far beyond the Court’s precedent. Here, I will focus on a different aspect of Judge Agee’s dissent: the interplay between standing for purposes of the Immigration and Nationality Act, and standing for the Establishment Clause. As a threshold matter, the Supreme Court has recognized that plaintiffs are required to “demonstrate standing separately for each form of relief sought.” Judge Agee notes that en banc court “haphazardly merges alleged injuries unique to two different claims, and personal to different people, to manufacture standing.”

In Mandel, the Court recognized that aliens outside the United States could not bring constitutional challenges, such as asserting a First Amendment right to communicate with Americans. However, American scholars could assert a First Amendment right to communicate (in person!) with the alien. (The word “standing” appears nowhere in Mandel; I am noncommittal on whether this decision comports with modern standing jurisprudence.) Likewise, aliens who are subject to the travel ban cannot, in their own right, bring an Establishment Clause claim. Rather, the only parties that could bring the claim are the alien’s associates (relative or organization) within the United States. But such a suit is not so simple. While there is ample precedent to support the notion that Americans can bring a First Amendment-speech claim in order to interact with others, there is no similar precedent establishing that Americans can bring a First-Amendment-Establishment Clause claim on behalf of others. Judge Agee explains, “Plaintiffs do not have standing to allege violations of the Establishment Clause on behalf of their immigrant relatives.”

The injury that the plaintiffs assert must be premised on the Immigration and Nationality Act, which specifically countenances spouses, relatives, and other organizations being able to petition for visas. But even here, the asserted injury is not yet ripe. Judge Agee notes that with respect to one of the plaintiffs, “[h[is alleged injury is based on a mere conjecture that his wife will have her embassy interview and obtain a discretionary visa within the ninety-day suspension period of the Executive Order when the State Department has cautioned, well before the Executive Order, that it may take an indefinite period to schedule interviews much less adjudicate visa applications.” For reasons I highlighted in Part IV of this series, I am not convinced the Mandel test is applicable until an actual denial is issued. The Solicitor General makes a similar point in his petition for a writ of certiorari: “Mandel’s substantive standard applies to challenges to decisions to deny visas to aliens seeking entry. It does not govern every issue concerning immigration—such as post-removal detention.” Though there ultimately may be an injury, the challenge is not proper at this juncture.

From Richmond to Washington

This case is on a collision course with the Supreme Court. In at least two points in his dissent, Judge Niemeyer spoke directly to the Justices. First, of the Fourth Circuit’s reliance on campaign statements, he wrote that “[t]he Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds.” Second, with respect to the majority’s reading of Mandel, he wrote that “[u]nless corrected by the Supreme Court, the majority’s new approach, which is unsupported by any Supreme Court case, will become a sword for plaintiffs to challenge facially neutral government actions, particularly those affecting regions dominated by a single religion.”

The dissenters also highlight, subtly, how a decision against President Trump, in the earliest days of his administration, could hobble the administration going forward. Judge Niemeyer worries that “our courts will be faced with the unworkable task of determining when this President’s supposed religious motive has sufficiently dissipated so as to allow executive action toward these or other majority” (emphasis added). I emphasized “this President,” because indeed, such rulings would invariably apply only to this President. The majority invokes what Quinta Jurecic refers to as a “jurisprudence for an oathless president.” Chief Judge Gregory attempts to cabin the decision to Trump, and Trump alone:

If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review (emphasis added).

…

The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution” (emphasis added).

Judge Shedd acknowledged that though this decision may amount to a “political defeat for this President . . . it is shortsighted to ignore the larger ramifications of this decision.” Specifically, “the President and his national security advisors (and perhaps future Presidents) will be seriously hampered in their ability to exercise their constitutional duty to protect this country” (emphasis added). I emphasized future Presidents, because any decision that the Supreme Court reaches will invariably be cited in future legal challenges, no matter how the Justices attempt to narrow it. Such a narrowing effort need not be quite as explicit as Chief Justice Rehnquist’s admonition in Bush v. Gore that “[o]ur consideration is limited to the present circumstances.” But in the context of the separation of powers, a “ticket good for one [president] only” is a very dangerous precedent. And that is precisely what the Fourth Circuit issued.

The Solicitor General’s Filings

Late Thursday evening, the Solicitor General filed three documents with the Supreme Court: a petition for certiorari in IRAP v. Trump; an application for a stay pending disposition of the cert petition in IRAP v. Trump; and an application for a stay pending appeal to the Ninth Circuit in Hawaii v. Trump, or in the alternative, a petition for certiorari before judgment. These filings begin a game of three-dimensional chess.

President Trump’s revised executive order, issued on March 6, 2017 and set to go into effect ten days later, envisioned an intricate process to prevent terrorists from entering the United States—a process that was, of course, truncated by the ensuing litigation. Section 1(a) established that it is the executive’s policy to “improve the screening and vetting protocols and procedures associated with the visa-issuance process” and the U.S. Refugee Admission Program (USRAP). Section 1(e) provides “brief descriptions” of why nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen “continue to present heightened risks to the security of the United States.” Section 1(f) concludes that “until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high.” Section 2, which has seven sections, provides the details to implement this inward facing review process and outward facing travel ban. The 90-day suspension of entry in Section 2(c) was not an end unto itself, but was designed to provide the government with an opportunity to reassess its vetting procedures.

Two different nationwide injunctions have prevented the government from enforcing key provisions of Executive Order 13,780. On March 16, 2017, the day the order was to go into effect, Judge Theodore D. Chuang of the District of Maryland entered an injunction in IRAP v. Trump barring the executive branch from enforcing Section 2(c) of the order. Section 2(c) suspends entry of certain aliens from six nations for 90 days from the effective date of the order. However, Judge Derrick K. Watson of the District of Hawaii’s injunction more broadly enjoined the executive branch “from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation.” Two days later, the Solicitor General filed a motion for clarification, asking whether the order “enjoins purely internal activities of the government as described in both Sections 2 and 6, such as Section 2’s provisions addressing agency review of global vetting procedures that was to take place during the suspension-of-entry period.” Judge Watson promptly denied the motion for reconsideration, stating that “there is nothing unclear about the scope of the Court's order.” Sections 2 and 6 remained enjoined. The Ninth Circuit’s denied the Solicitor General’s request to stay the injunction.

What Next?

I suspect that at least four Justices are inclined to grant the petitions for certiorari, though that review is complicated by the wildcard of the Hawaii injunction. There are three possible outcomes.

First, at any moment—perhaps before the respondent’s reply briefs are due to the Supreme Court on June 12--the Ninth Circuit could issue its ruling that could narrow the injunction to Section 2(c), such that the government can perform its internal deliberations. This decision would restart the clock, and potentially moot the case before the Supreme Court hears it. Amir Ali writes that “By continuing to block the entry ban, but allowing the government to conduct its 90-day review, the Ninth Circuit can give the challengers back this powerful argument to put an end” to the travel ban. Under this route, the challenge could be mooted by the time the case finally hears arguments. In such a case, the case could become moot. Specifically, under the Munsingwear doctrine, if a case becomes moot while pending before the Court, the lower court decisions are vacated. Justice Douglas explained nearly six decades ago that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” This option would allow the Court to wipe off the books the flawed decisions of the Fourth and Ninth Circuits without forcing it to put its stamp of approval on the travel ban (for now at least).

Second, Mark Tushnet urges the Supreme Court to take the “easy out”: “Grant the stay of the Hawaii injunction, thereby allowing the government to proceed with its internal review of screening procedures, deny the stay of the Fourth Circuit injunction, and do whatever the heck they want about the petition for certiorari.” This case, he writes, “will then almost certainly be moot by the time it's argued, and all that would be left would be to clean things up, presumably by directing that whatever injunctions are still in effect should be vacated.” Like with the first option, under the Munsingwear doctrine, the lower court decisions would also be vacated.

Then there is door number three. Marty Lederman writes that regardless of what happens to Hawaii v. Trump, the 90-day period will expire on June 14, 2017:

Section 2(c) of the Order provides that “the entry into the United States of nationals of [the six designated] countries be suspended for 90 days from the effective date of this order.” And Section 14 of the Order specifically provides that the “effective date” of the Order was 12:01 a.m. on March 16. Accordingly, the E.O. itself provides that the suspension prescribed in Section 2(c) ends at 12:01 a.m. on Wednesday, June 14, whether or not any courts have enjoined its implementation in the interim.

Under his reading, the district court injunctions cannot toll the process because the President’s order established a date certain. I’m inclined to agree with Will Baude, who writes that “[t]he order will last until it has done what it says it is going to do, namely suspend entry for 90 days.”

Further, this is not how the government has construed Judge Watson’s order. Acting Solicitor General Jeffrey Wall said that after the Hawaii ruling, his clients put their “pencils down.” For those who put stock in statements made on cable news, last week Homeland Security Secretary told Chris Wallace on Fox News Sunday that it could not review new vetting procedures because “we are enjoined.” The Court is not bound by the executive branch’s interpretation of its own executive order, but this position is entitled to some degree of deference, especially where the government represents that it is trying in good faith to comply with a court’s ruling and act in a lawful manner.

Later in his post, Lederman suggests that to avoid the mootness problem, the President could issue another order “extending the entry ban beyond June 14–say, to X days after the Secretary begins the Section 2(a) assessment, rather than to a date certain.” But, as Lederman notes, this would not affect the fact that the original March executive order—the order that is the subject to the litigation—would still retain the June 14 date certain.

If the Court is inclined to keep the case, it can do so through the voluntary cessation doctrine, especially if the specifics of a new executive order are identical to the earlier one. As the Court noted in Friends of Earth v. Laidlaw Environmental Services (2000), “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” In this situation, the government would represent the exact opposite: it intends to continue the conduct through the new executive order, not that it would cease that behavior. Here, the Court could avoid the suggestion of mootness based on the revised executive order. (I discuss the voluntary cessation doctrine here, in the context of the withdrawal of the January 2017 travel ban.)

After several months of the lower courts dictating the pace of this litigation, now the ball is in the Supreme Court. If the Justices want to take the case, the mootness doctrine will not stop them. If the Justices want to vacate the lower-court decisions, without issuing a ruling on the merits, Munsingwear provides an out. If the Justices want to schedule a special sitting in September, and hear this case on an even faster schedule than the SG requested, they can do that also. Now, all we can do is wait.