(Reuters) - In 2001, after the September 11 attacks on the World Trade Center and the Pentagon, President George W. Bush and Attorney General John Ashcroft instituted a program called the National Security Entry-Exit Registration System. The program required men over the age of 16 who were living in the United States but were citizens of 25 foreign countries – 24 Muslim-majority countries and North Korea – to be registered with and fingerprinted by U.S. authorities.
Men subject to the registration program challenged the registry (or deportation orders resulting from the program) in federal courts all over the country, alleging that the registry amounted to unconstitutional ethnic and religious discrimination. Eight federal circuit courts ultimately heard cases contesting the constitutionality of the registry. All of them upheld the program.
The Bush administration, these courts said, had a bona fide national security rationale for imposing the registry, the 2nd U.S. Circuit Court of Appeals wrote in its 2008 opinion rejecting a constitutional challenge to the program. And that’s just about all the U.S. Supreme Court demands from a president when it comes to immigration policy. “Immigration legislation,” the U.S. Supreme Court said in its 1977 decision in Fiallo v. Bell, “will survive a constitutional challenge so long as there is a facially legitimate and bona fide reason for the law.”
This longstanding principle of court deference to sweeping presidential authority over immigration policy has been thrown into doubt by President Donald Trump’s attempts to restrict immigration from Muslim-majority countries. The president tells his supporters that his actions are promoting national security. But his words may be undermining the power of the executive branch, and not just during his presidency.
As you’ve probably heard, two federal district judges have just issued temporary injunctions against the Trump administration’s second go at an executive order restricting travel and immigration from six Muslim-majority countries. (The revised order removed Iraq from the restricted list.) U.S. District Judge Derrick Watson of Honolulu barred enforcement of the executive order on Wednesday night. U.S. District Judge Theodore Chuang of Greenbelt, Maryland, enjoined the travel restrictions early Thursday morning.
Both judges rejected Trump administration arguments that they should limit their review of the executive orders to whether the government had offered a legitimate rationale for travel restrictions. They agreed that, in general, courts are supposed to defer to the president’s national security and foreign policy judgments. But both judges said they are entitled to look at the context of the president’s decision-making.
“The question … is not simply whether the government has identified a secular purpose for the travel ban,” Judge Chuang wrote. “If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated.”
Judges Chuang and Watson discerned what both called “animus” toward Muslims in statements by the president and his advisers. “These statements, which include explicit, direct statements of President Trump’s animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the first executive order was issued to accomplish, as nearly as possible, President Trump’s promised Muslim ban,” wrote Judge Chuang. “The history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban.”
Most presidents are not larded with the heavy baggage that has sunk Donald Trump’s travel ban, at least temporarily. But the precedent resulting from Trump’s statements could be a problem for future U.S. leaders.
Judge Jay Bybee of the 9th Circuit explained why in a compelling opinion Wednesday night – the third major opinion federal courts issued this week on the Trump administration’s travel ban. Judge Bybee and four other 9th Circuit judges dissented from the court’s decision not to review en banc a three-judge panel’s ruling last month that the president’s first executive order likely violated constitutional due process protections.
Bybee argued the 9th Circuit panel’s decision endangers the bedrock constitutional principle that courts have only limited power to review immigration policies adopted by Congress and the president. That review, according to the dissent, should not exceed the boundaries the Supreme Court established in Kleindienst v. Mandel in 1972, which requires only that the government offer a legitimate rationale for its action. The Supreme Court reiterated that standard in the Fiallo case, which I mentioned above, and again in 2015’s Kerry v. Din.
Judge Bybee pointed to the litigation history of the Bush registry as an example of how deferential federal appellate courts are supposed to be in reviewing presidential decrees on immigration – and it cannot be reconciled, he said, with the 9th Circuit panel’s decision on the Trump order. “Even if we have questions about the basis for the President’s ultimate findings – whether it was a ‘Muslim ban’ or something else – we do not get to peek behind the curtain,” he wrote. “So long as there is one ‘facially legitimate and bona fide’ reason for the president’s actions, our inquiry is at an end.”
But because the entire 9th Circuit chose to leave the panel’s decision intact, there is now established precedent allowing judges to inquire more deeply into the president’s rationale for immigration policy, Judge Bybee said. He was proven right by the opinions Wednesday from Judges Chuang and Watson, who both cited the very 9th Circuit panel ruling Judge Bybee considers so dangerous.
Judge Bybee blamed his 9th Circuit colleagues for allowing the precedent to stand. “It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress,” he wrote. “We will yet regret not having taken this case en banc to keep those lines of authority straight.”
I’d argue that it’s President Trump and his administration that are responsible for any blurring the travel ban has caused to separation of powers doctrine. Their original executive order offered a national security rationale so skimpy that courts felt compelled to consider alternative motivations for the travel ban – and the president and his advisers provided a record of public statements that allowed judges to find discriminatory intent.
The Justice Department has said the administration intends to appeal restraining orders against the new travel ban and will litigate at the Supreme Court, if necessary. President Trump, speaking at a rally in Tennessee after Judge Watson’s ruling, accused the judge of “overreach” that made the U.S. look weak. He also said his administration would go to the Supreme Court, if need be, to defend the executive order.
It’s possible, of course, that if these cases reach the justices, the Supreme Court will use the opportunity to reiterate the principle of court deference to the political branches on immigration and national security, though as my colleagues Dan Levine and Mica Rosenberg reported Thursday, the court probably won’t have a full complement of nine justices to hear the cases if appeals are expedited. Will a Supreme Court split evenly along political lines approve a policy deemed constitutionally infirm by the majority of the courts to consider it?
If not, future presidents may have Donald Trump to thank.