Procedural Hurdles Could Trip Up Travel Ban Challenge

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Strawbridge Robinson

Procedural hurdles could allow the U.S. Supreme Court to avoid dealing with the thorny substantive issues surrounding President Donald Trump’s travel ban, courtwatchers told Bloomberg BNA.

The government June 1 asked the Supreme Court to reinstate the ban, which has been put on hold by lower federal courts.

The U.S. Court of Appeals for the Fourth Circuit globally enjoined the ban at the request of a handful of people, and “against a formal national-security determination by the President, made after consultation with the Secretaries of State and Homeland Security and the Attorney General,” the government told the justices in their petition for Supreme Court review.

But procedural obstacles should have prevented the lower courts from weighing in on the controversial issues surrounding the plaintiffs’ establishment clause claims, the government argued.

Courts can’t review these kinds of executive actions, the government said. And even if they could, the plaintiffs here haven’t exhausted all their administrative options, which is required before courts can take a look, it added.

Court watchers disagree whether the court will reinstate the ban based on these procedural hiccups, but some suggested that Chief Justice John G. Roberts Jr. might be particularly attracted to this procedural path.

One of the Chief’s “main goals” in recent terms has been “to avoid the perception that it is a political body,” Adam Feldman said in a June 5 blog post. So finding a way to stay away from the divisive issues surrounding the plaintiffs’ establishment clause claims could be quite appealing to Roberts.

National Security

Among other things, the now-revised travel ban temporarily halts nationals from six predominantly Muslim countries from entering the U.S. The pause is necessary to protect U.S. citizens from terrorist attacks while the government reviews its “screening and vetting protocols and procedures associated with the visa-issuance process,” the executive order says.

Aside from a brief period, the ban hasn’t gone into effect because federal courts in Hawaii and Maryland found that it likely violates the establishment clause, which prevents the government from favoring one religion over another. While the Ninth Circuit is still considering the Hawaii court’s decision, the Fourth Circuit upheld the decision to halt the ban in the Maryland case.

So the government has asked the Supreme Court to step in.

Nonreviewability

Courts can’t even review the substance of the plaintiffs’ constitutional challenges, the government argues.

The Supreme Court has “‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control,’” the government said in its petition, citing a 1977 Supreme Court decision. “That principle is manifested in ‘the doctrine of consular nonreviewability,’ which provides that the Executive’s decision to issue or revoke a visa for an alien abroad ‘is not subject to judicial review,’” unless Congress says otherwise, it said.

“Far from saying otherwise, Congress has reaffirmed the doctrine. It has forbidden ‘judicial review’ of visa revocations (subject to a narrow exception),” the government said.

That exception allows judicial review only where the constitutional rights of U.S. citizens are at issue, it said. That’s not the case here, the government argues.

Here, the plaintiffs are really complaining that the travel ban violates their spouses’ rights, it said. But, of course, non-U.S. citizens abroad don’t have a constitutional right to enter the U.S., the government said.

‘Ever-Expanding Constitutional Rights’

As recently as 2015, the Supreme Court addressed the doctrine of consular nonreviewability, Hans von Spakovsky, of the conservative Heritage Foundation, told Bloomberg BNA in a June 5 email. That case, Kerry v. Din, “involved a U.S. citizen trying to assert due process and other constitutional rights related to the denial of a visa for her husband, an Afghani,” von Spakovsky said.

A splintered Supreme Court ruled against her, von Spakovsky noted. If the lower courts considering the ban had followed Din, “they would have thrown out these cases instead of enjoining the government” from carrying out its ban, he said.

But Din isn’t entirely clear, as the court cobbled together a majority in two different opinions, one by Justice Antonin Scalia and the other by Justice Anthony M. Kennedy.

Scalia’s opinion, joined by two other justices in the majority, argued that Din was asserting a constitutional right that didn’t exist.

Din claimed “that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse,” Scalia explained. “There is no such constitutional right,” he said. What is described is, “in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse’s freedom to immigrate into America.”

Scalia’s opinion isn’t controlling, as no opinion got the support of a majority of the justices. Kennedy’s decision didn’t come to a conclusion on this issue.

Therefore, if the Supreme Court were to adopt Scalia’s language, it would seem to doom the plaintiffs’ claims.

Inverse Situation

That isn’t what the lower courts did here, however.

The plaintiffs here are American citizens or lawful permanent residents seeking entry of family members barred under the ban. Because the ban prolongs the plaintiffs’ separation from those family members, the plaintiffs themselves have been injured, the lower courts said.

Ilya Shapiro, of the libertarian think tank Cato Institute, elaborated: “Consular nonreviewability refers to a foreigner’s (non-)rights abroad,” Shapiro told Bloomberg BNA in a June 5 email. “This is almost the inverse, whereby Americans (or foreign nationals lawfully in the U.S. on an immigrant visa) do have certain rights and can establish standing if they’re actually harmed,” he said.

That would include “a husband who can’t bring his wife in” or “a university whose students can’t return for the fall semester,” Shapiro said. In these examples, there’s clear standing “based on the rights of someone in the U.S., not in the rights of the foreigner abroad,” he said. Shapiro writes Cato’s annual Supreme Court Review.

Moreover, the doctrine of consular nonreviewability likely doesn’t even apply here, Peter J. Smith, of the George Washington University Law School, Washington, told Bloomberg BNA in a June 5 email.

That’s because this is a facial challenge to the president’s order, “which means they are arguing that it is so tainted by the motive of religious discrimination that it cannot be constitutionally applied to anyone,” Smith, who has written on the procedural hurdles in the travel ban cases, said.

The nonreviewability doctrine, “to the extent that it is relevant at all, would typically apply to one person’s claim that an otherwise-constitutional policy was being applied impermissibly to him,” he said.

Administrative Exhaustion

There’s another procedural hiccup that requires that the Supreme Court invalidate the decisions below, the government argues: The plaintiffs haven’t asked the government for a waiver.

The travel ban “contains a detailed provision permitting case-by-case waivers where denying entry ‘would cause undue hardship’ and ‘entry would not pose a threat to national security and would be in the national interest,’” the government explained. “It provides a nonexhaustive list of circumstances in which a waiver could be appropriate, including when the applicant seeks entry ‘to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa.’”

“The plaintiffs’ spouses are thus candidates for a waiver,” the government said. Unless and until they seek and are denied a waiver, “there is no final decision denying” entry, and the plaintiffs’ claims are not “ripe” for the court’s consideration, it argued.

It’s “a strong argument against standing” that “someone claims that a family member can’t enter without even trying to get the entry visa and being denied,” Shapiro said. Indeed, the travel ban was revised “to allow entry for family, medical, educational, and other reasons that should foreclose this kind of standing claim,” he pointed out.

The plaintiffs clearly “should have exhausted the administrative process before filing suit,” von Spakovsky said. “But this is a political lawsuit, not a legal one, so they had no interest in doing that,” he added.

But Smith pointed again to the breadth of the challenges—namely that they challenge the ban as a whole, rather than individually applied—as a reason why that argument might fail. The government seems to treat the argument as a “throwaway” in its brief, Smith said.

Avoiding Conflict

Though the arguments the government puts forth in its brief “strike me as very weak and unlikely to serve as the basis for the” Supreme Court’s decision, there’s a chance “that the Supreme Court will look for a way to avoid the merits of the suit,” Smith said.

Shapiro agreed that a a procedural way out might be attractive to many on the high court, particularly Roberts. The Chief would probably “love to get rid of the dangerous precedent” set by the lower court of “second-guessing executive decisions regarding national security without having to rule in favor of the travel ban on the merits,” he said.

Moreover, it would allow the court to avoid jumping into a controversial issue that could cast the court in a political light.

“Especially due to the Court’s ruling in Bush v. Gore and the subsequent public backlash, many Court commentators convey that one of Chief Justice Roberts’ main goals is to avoid a similar situation and predicament,” Feldman wrote in his blog post.

We could soon know whether the court will jump into the fray. The Supreme Court has agreed to expedited briefing in the case.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law