Tuesday, July 25, 2017

The Implicit and Explicit Rulings in the Trump v. IRAP Stay Decision by Geoffrey A. Hoffman


The Implicit and Explicit Rulings in the Trump v. IRAP Stay Decision by Geoffrey A. Hoffman

On June 26, 2017, the Supreme Court granted certiorari and partially granted the Trump administration’s request for a stay of the injunction on the travel ban. The explicit ruling narrowed the scope of the injunction. The implicit ruling is more troubling. The explicit ruling established that a bona fide relationship to a U.S. person or entity would be enough to support enjoining the travel ban as to those persons. If one were able to show such a relationship then the government’s travel ban could not be enforced. However, as noted in the partial concurrence and dissent, by Justices Thomas, Alito and Gorsuch, implicitly the majority appeared to have found that the requirements for equitable relief had been met in favor of the government. The requirements for injunctive relief are: (1) a strong likelihood of success on the merits; (2) that the movant likely will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities weighs in the movant’s favor; and (4) that a stay is in the public interest.

Although the majority never explicitly applied these equitable factors, they must, so the reasoning goes, have found persuasive the government’s argument that it had shown a high likelihood of success on the merits (at least as to those with no connection to the United States). The explicit ruling on nexus relating to the scope of the injunction appears to be a compromise move, but to get there the dissent’s point is that there had to have been an undisclosed and hidden antecedent premise:  that the government would likely succeed on the merits and would suffer irreparable harm absent the stay based on a national security rationale. This implicit reading of the ruling should be rejected for several reasons.

First, if the dissent is correct about the implicit ruling, then the Supreme Court appears to have endorsed the idea that the controlling precedent and starting place for the instant case is Kleindienst v. Mandel (1972).  This conclusion is bolstered by the similarity between the language in the 1972 decision and in the June 26 decision. In Kleindienst, the Supreme Court upheld the government’s denial of a waiver of inadmissibility for a scholar who had been denied admission to the United States so long as the government asserted “legitimate and bona fide” reasons supporting its denial. In the June 26 stay decision we also see the “bona fide” language resurrected, but this time in the context of a legitimate connection to the United States. The standard articulated by the high court in Kleindienst was the lowest and most deferential to possible for the government:  i.e., a formulation of the so-called “rational basis” test. Throughout our jurisprudence, however, whenever the rational basis test has been utilized the impugned governmental action almost always is permitted with limited exceptions.

Kleindienst v. Mandel should not serve as the touchstone for the Supreme Court’s forthcoming merits decision if that is what the majority is signaling according to the dissent’s reading of their stay opinion.  If indeed this is the correct take-away from the June 26th decision, the reliance on Kleindienst is misguided.  Although it was an immigration case and raised a First Amendment claim, the case is distinguishable. The fundamental issues found in both Trump v. IRAP and Trump v. Hawaii as compared to Kleindienst are distinguishable.  Despite the facial similarities between Kleindienst  and the current cases, it would be a fundamental mistake to blindly import the level of scrutiny found in Kleindienst.

While Kleindienst was a First Amendment case it was based on freedom of speech and association, not on the First Amendment’s Establishment Clause. As noted quite extensively by the Fourth Circuit, the Establishment Clause has its own jurisprudential history and structure of analysis, wholly absent from Kleindienst v. Mandel.  Importantly, the Fourth Circuit below relied heavily on the Establishment Clause jurisprudence and was not swayed by the government’s assertion of a Kleindienst-type limited approach.  Specifically, the Fourth Circuit applied Lemon v. Kurtzman, 403 U.S. 602 (1971).  The Ninth Circuit for its part in its decision did not reach the Constitutional question, since it held that there was a high likelihood of success that the second Executive Order contravened the Immigration and Nationality Act, by exceeding the President’s authority under 8 USC § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees. Relying on the statutory argument meant the Ninth Circuit could avoid the constitutional issues altogether.

Since the Supreme Court has now sided with the government in narrowing the scope of the preliminary injunction, it appears the high court is not inclined to fully embrace the Ninth Circuit’s statutory scope argument under section 1182(f). Had the court been so inclined, it would not have implicitly found a high likelihood of success on the merits and that irreparable harm would result to the government. It also appears the Supreme Court is not inclined to wholly embrace the Fourth Circuit’s Establishment Clause starting point, either – at least not in such a way that it would limit the power of the President over persons lacking a sufficient connection to relatives or entities in the United States.

If the Supreme Court had fully embraced the decisions below, then they would not have granted the government’s stay in any fashion, since the President would not have had statutory authority at all under 1182(f) to issue the travel ban in the first place. However, importantly, there is nothing to limit the Supreme Court in its future merits decision from finding that 1182(f) is limited by either other sections of the Immigration and Nationality Act to restrict the President’s power as to those persons with a sufficient connection to the U.S. and/or restricted by our Constitution, specifically the First Amendment.

The Supreme Court at the outset in its merits analysis will have to determine the correct level of scrutiny for the plaintiffs’ First Amendment claim. Since a majority of the court is inclined to make distinctions relating to a person’s connection to person or entities in the U.S., there is nothing to prevent the high court from asserting a bifurcated level of scrutiny depending on the persons connection with U.S. persons or entities. I predict the Supreme Court will reject Kleindienst v. Mandel as wholly controlling the issues in Trump v. IRAP.


If Kleindienst were the touchstone case, then the majority would not have ruled as it did on the stay. I predict the majority of the high court will find that the lowest and most deferential level of scrutiny is not applicable at least as to those with an appropriate connection to the United States. Kleindienst v. Mandel related to the agency’s decision to deny one applicant his waiver of one ground of inadmissibility. The current case involves much more. 

In the current case, if the government’s argument were wholly endorsed a dangerous precedent would be set. The current cases involve not one agency decision but an entire Executive Order with breathtaking scope and application. Analysis of the propriety of such purported overreach and the executive power to set forth such sweeping restrictions on classes of aliens is a far cry from Kleindienst v. Mandel.  Although in Kleindienst the foreign scholar coming to the U.S. to speak had some connections to the U.S., the connections asserted by the plaintiffs in the present litigation are (for many) much more important and intrinsic to the plaintiffs’ lives and their families. Consider also refugees who seek a new life, and family members who seek to be reunited with U.S. relatives, and employees or students who have job offers or offers of admissions.

For these reasons, Kleindienst v. Mandel will not be the touchstone as the government urges. Instead a heightened level of scrutiny will be embraced by the Court. In its merits decision, the Supreme Court will reject the “legitimate and bona fide” test, instead requiring far more significant reasons to bar entry of a group of aliens, so long as they can show the requisite connect to the United States. A lot has happened since 1972, including an erosion of the plenary power doctrine. In a series of cases the Supreme Court has shown that it will not just accept, as it did in the 1880s Chinese Exclusion Act case that any purported governmental reason for a restriction on immigration is an “incident to sovereignty” and therefore permitted. Instead, the Supreme Court will require the government to show more.

The Supreme Court is now in new territory. Where it goes in its merits decision will be determined by how it views Kleindienst v. Mandel.  If the Supreme Court sees the present case as being about more than a Kleindienst-type exclusion, as it should, and looks outside the four corners of the Executive Order, then the Supreme Court will fashion a new legal test and reject the limited rational basis type analysis of Kleindienst. It will endorse a rational basis-plus or even higher scrutiny in cases where plaintiffs can show a sufficient connection to the United States.  Viewed correctly, this case is not just an immigration exclusion case but one of the most crucial cases of our lifetime. It will define the precise Constitutional limits on a president’s attempt to assert unlimited power.



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The EO had nothing to do with any establishment of religion.
This statement gives us some hope: "whenever the rational basis test has been utilized the impugned governmental action almost always is permitted with limited exceptions."

Posted by: Ben Frank | Jul 25, 2017 12:54:08 PM

A scholarly and correct observation of the troublesome order of the scotus.

Posted by: j. jasso | Jul 26, 2017 6:04:13 AM

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