A Former Practitioner's Meditation on The Second-Worst Case, by Kari Hong (guest post)

 

By Kari Hong at Boston College School of Law:

I have personally litigated just under 100 actions in the Ninth Circuit, clerked for the current Chief Judge, and founded a clinic in which I have continuing representation at the Court.  I listened to the arguments in Washington v. Trump, found them riveting and wanted to share some observations.

Judge Kozinski quipped that, in a federal appeal, it is not the best case that wins but the second-worst one.  That insight came to life during arguments regarding the limits of each side's arguments.  As a preliminary matter, it was astonishing and impressive to listen to two attorneys and three judges be as prepared and articulate as they were with under 96 hours of preparation.  Kudos to all involved.

However, I was most interested in the questions Judge Clifton asked as he seemed to zero in on each side's weaknesses. 

For the Government, it is hanging its hat on the notion that 212(f)---the clause that authorizes the president to suspend entry of "any aliens or of any class of aliens" when he determines that their entry would be "detrimental to the interests of the United States."  The clause permits the president to act by proclamation, to suspend entry for any time period he alone deems necessary, and to impose any other restrictions that are appropriate.

The plain language certainly supports the Executive Order.  The judges, however, twice asked the Government if a president would be authorize to expressly bar all Muslims into the United States without any review by the courts.  At first the government attorney said yes, and then backtracked.  

This question, I think, is the key weakness in the government's case.  As a gut matter, it seems that however broad this language appears, common sense suggests there must be some limit.  The federal government needs to figure out what that would be if it wishes to succeed.  At a minimum, common sense suggests that the Constitution would be able to limit 212(f).  But, I suspect that there might be more in the INA that would do so as well.  The INA is known for confusing, contradictory clauses.  Just as the zipper clause was not as broad as the language suggests, I suspect that the States would strengthen its argument if it too can figure out if the INA itself serves any limit to a hypothetical ban as a statutory ground.   

I have to think that the limitation of the presidential's power to simply "entry" rather than the legal term admission or presence might be an example of a means to curtail this order to reach those with LPR status, work visas, student visas, and those who have petitioning relatives or employers.  I suspect there might be more such arguments out there.   

For the States, they seemed to advocate their strongest argument to be this action is based on impermissible animus.  As a statutory matter, Judge Clifton then asked isn't discrimination---arguably defined benignly as preferences---of one nationality over another central to US immigration policy?  Although he did not mention all instances, I agree with Judge Clifton that this is very much true.  From the Cold War, asylum law absolutely favored granting status to famous defectors---think Mikhail Baryshnikov and Nadia Comaneci--as proof of the West's superiority.  Immigration and asylum law reflected this preference, providing asylum to nationals of the Eastern Block and Cuban based on much lower thresholds for eligibility than other nationals needed to show. 

Judge Clifton asked if any case cabined the presidential power, and none was cited. However, we do have one example where the courts did not permit the president to make asylum harder for people of certain nationalities.  The American Baptist Church v. Thornburgh settlement involved allegations that the Reagan administration was intentionally interfering with the claims of asylum seekers from Guatemala and El Salvador to further his own administration's preference for certain Central American governments over others.  (And there, the asylum seekers were detained, pressured to waive claims, letters sent to IJs to contend no threat of persecution existed , and granted at rates between 1 and 3%.)  Ultimately, there was no decision on the merits, but the government did agree to a settlement, which created the ABC benefits.  

This suggests that as much as Congress can set a floor on eligibility and make it easier for some nationalities to get asylum, the President cannot unilaterally raise the bar and make it harder for a class of otherwise eligible asylum seekers to request relief.  It seems to me that this theory might be bear out as a reason how not all differential treatment is in fact equal under the INA or constitution.

Lastly, I was surprised at how receptive the judges seemed to grant the States standing to pursue the Establishment Clause claims.  The judges seemed to be cobbling together the theory that Kerry v. Din and Mandel did in fact support standing for a third-party to be harmed by the denial of a non-citizen into the country.  If this bears out below, this will be quite fascinating new case law.

 -JKoh