Saturday, January 28, 2017
President Trump issued an Executive Order (EO) late Friday afternoon entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States.” (The text is not yet on Whitehouse.gov; it is reproduced in the New York Times here].
Is it constitutional, specifically on the basis of equal protection?
The preliminary question is whether equal protection is an applicable doctrine. Despite being in the Fourteenth Amendment governing state action, the principle of equal protection has long been held to constrain actions by the federal government. In Bolling v. Sharpe (1954), for example, a companion case to Brown to Board of Education, the Court essentially held that the equal protection principles of Brown would apply to the D.C. schools of Bolling through the Fifth Amendment's Due Process Clause. One of the precedents on which the Court in Bolling relied was Hirabayashi v. United States (1943), in which the Court phrased the issue regarding the constitutionality of federal military orders regarding Japanese internment as:
The questions for our decision are whether the particular restriction violated, namely, that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.
In Hirabayashi, the Court famously pronounced
Distinctions between citizens solely because of their ancestry are, by their very, nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.
The support for this principle in Hirabayashi was Yick Wo v. Hopkins (1886), which involved state action that affected Chinese nationals in California, excluded from citizenship by federal law. In Yick Wo, the Court was clear that "any person" in the text of the Fourteenth Amendment was "universal in their application to all persons" without regard to any differences of nationality.
But Yick Wo does not mean that equal protection or other constitutional rights apply globally. The question of what "subject to the jurisdiction" of the state or federal government as applied to noncitizens means is a vexing one. For example, in Boumediene v. Bush (2008) involving the habeas corpus rights of noncitizens detained in Guantanamo Bay, Cuba, the Court rehearsed the "extraterritorality cases" and ultimately concluded that the Suspension Clause (generally prohibiting the suspension of habeas corpus), in Article One, Section 9, clause 2, applied to noncitizens detained at Guantanamo Bay. Unlike the "enemy combatants" in Boumediene, however, the "noncitizens" subject to the President's Executive Order (EO) often have substantial links to the United States. Although the language of the EO lacks clarity on the question, a government spokesperson today has stated that the EO applies to permanent legal residents, often known as "green card" holders. Thus, all "aliens" are not the same. Instead, there is a sliding scale of rights, greatest in a naturalized citizen and least in a non-resident non-citizen without any immigration status, but in between there are numerous other categories including those who are permanent legal residents, including those who have "rights" that are "more extensive and secure" because the person has made "preliminary declaration of intention to become a citizen," Johnson v. Eisentrager (1950). Moreover, the question of territoriality is also cloudy. As the EO went into effect, some people were landing in the United States, and thus "in" the country, and for "permanent residents" who may have been traveling briefly abroad and have no other home, their domicile may be in the United States.
Assuming the Equal Protection Clause applies, the EO on its face makes classifications based on national origin and religious identity. The national origin classification is clear and by reference, the EO applies to 7 nations: Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. These nations are Muslim-majority nations, and a provision of the EO regarding refugee status directs priority to "refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. "
Generally, classifications based on national origin, as well as religious identity, would receive strict scrutiny, as derived from the famous footnote four of United States v. Carolene Products Company, although religious identities are more rarely litigated under Equal Protection (one example is here), given the robust First Amendment protections.
When the federal power over immigration is involved, it may be argued that the otherwise applicable level of scrutiny is less appropriate, or even if it does apply, its application includes greater deference to the national government. But in cases such as Nyguen v. INS (2001), involving a Fifth Amendment equal protection challenge to a federal gender classification with differing rules for unwed mothers and for unwed fathers in their ability to confer derivative citizenship, the Court carefully considered the usual level of scrutiny. And in a similar recently-argued case, Lynch v. Morales-Santana, there was little indication that simplistic deference to the national government was appropriate; the Second Circuit had held that the gender differential violated equal protection.
If strict scrutiny applied to this national origin and religious classifications, it would require a compelling government interest with the means chosen being narrowly tailored. National security is oft-considered a compelling interest, and the EO repeatedly cites "September 11." Yet, even accepting that this would be compelling, there are serious problems proving the narrowly tailored prong. If one accepts the "September 11" rationale, the link to an event more than 15 years ago is tenuous. Additionally, even if there was such a link, there is no overlap in the nationality of those involved in the September 11 attacks and those targeted in the EO.
Not only is there a mismatch between the nationalities of September 11 attackers and the nationalities of those targeted in the EO, there is the odd coincidence that President Trump has no business connections in the nations targeted while having such business interests in the nations excluded. This might lead to an argument that stated national security interest is not the President's genuine interest, similar to the Court's rejection of the "racial purity" interest in Loving v. Virginia and its conclusion that the "real" interest was White Supremacy. There could be an argument that the President's "real" interest in the EO is one of personal profit, an interest that coincides with the recently filed Emoluments Clause challenge. Or there might be an argument that the President's "real" interest relates to Russia, an interest that would coincide with ongoing investigations into the Trump-Putin connections. Finally, there is an argument that the targeting of Muslims is based on animus and the bare desire to harm a politically unpopular group, an interest that the Court has repeatedly found to not even satisfy the lowest level of scrutiny requiring a mere legitimate interest, in cases such as Moreno v. USDA (1973).
There are certainly other issues in addition to equal protection; the just-filed ACLU complaint's first claims rest on procedural due process, although there is also an equal protection claim. [Update here].
Nevertheless, equality arguments will loom large in the "Muslim ban" challenges.