This is my fourth blog about the case now proceeding before the Ninth Circuit Court of Appeals in San Francisco. Since yesterday applications to file amicus briefs have been filed by twenty different organisations or groups of people.   They include 16 other States, not including the State of Hawaii, whose application to be joined as an intervener in the proceedings has been rejected.  The court has ordered that each of the two main parties may address it orally for 30 minutes each  by telephone, starting at 3 pm Pacific Standard Time.  There will be an audio-only live stream at that time, with no courtroom proceedings or associated video feed.  For those brave souls who want to stay up till midnight in the UK to listen to the oral arguments, the link is at www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010884

In the meantime I will summarise here the main points made by the Government in its 15-page reply.  I have omitted all the citations of caselaw or statutory authority: the full text can be found on the Court’s altogether admirable website.

The Government’s Reply

The Government argues that the Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees. The President has express statutory authority to suspend entry of any class of aliens to protect the national interest, and it is under this authority that he has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity. He has done this in order to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks.   In Massachusetts a federal district court recently concluded that this objective provided a “facially legitimate and bona fide” justification that satisfied any constitutional scrutiny that might apply.

Even if some relief were appropriate, the Government argues that the Washington court’s sweeping nationwide injunction was vastly overbroad, extending far beyond the State’s legal claims to encompass numerous applications of the Order that the State did not even attempt to argue are unlawful.

The Government advance four main arguments in its reply.

1. First, the State cannot challenge the denial of entry or visas to third-party aliens. It is said to be well-settled law that a State lacks authority to sue “as the representative of its citizens” to protect them from the operation of federal law. Cases that suggest otherwise can be distinguished on the facts: the Constitution vests the federal government with exclusive power over immigration for the Nation as a whole. An alien outside the United States has no substantive right or basis for judicial review in the denial of a visa at all.

In contrast to cases in which U.S. citizens have sought review of the denial of a third-party visa on the ground that they had an independent constitutionally-protected interest in the third-party’s admission to the country, the State has no independent constitutional rights to invoke with respect to the denial of admission of aliens affected by the Order.

2. Secondly, even if it could establish standing and a right of judicial review, the State would be unlikely to succeed on the merits of its claims, for four broad reasons.

The first reason is that Congress has granted the President a broad discretion to suspend the entry of “any class of aliens” into the United States, and an independently broad discretion over the refugee program. The exclusion of aliens is also “a fundamental act of sovereignty …inherent in the executive power to control the foreign affairs of the nation.” The State does not address the text of the legislation that gives the President this power, or the extensive caselaw that relates to the exclusion of aliens from the United States. And although the State suggests that it is somehow impermissible for the President to rely on this provision “to impose a categorical ban on admission,” the statute’s broad grant of authority to suspend the entry “of any class of aliens” “for such period as [the President] shall deem necessary,” whenever the President finds that it would be “detrimental to the interests of the United States,” clearly authorizes the categorical, temporary suspension the President has adopted here.

The second reason is that although the State continues to argue that the temporary suspension of the entry of aliens from the seven countries contravenes a statutory restriction on nationality-based distinctions, that restriction applies only to “the issuance of an immigrant visa” and not to the President’s restrictions on the right of entry. It also has no application at all to aliens who hold or seek non-immigrant visas, such as student visas or work visas. The statute permits, as here, a temporary suspension of entry pending completion of a review and revision of procedures for processing visa applications.

Furthermore, even if the statute applied, it would not restrict a broad grant of discretionary authority. A court should, whenever possible, “interpret two seemingly inconsistent statutes to avoid a potential conflict,” and should interpret “the specific [to] govern[] the general.” The State’s assertion that the statute limits the President’s authority to determine that the entry of a “class of aliens” would be “detrimental to the interests of the United States” would mean that he would be statutorily disabled from barring the entry of nationals of a country with which the United States was at war—a result that would raise serious constitutional questions.

The third reason is that when the State asserts that the Order violates the constitutional rights of lawful permanent residents (LPRs) it applies only to aliens who lack LPR status, and most of those aliens are outside the United States and have never been admitted to this country. The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Although the State argues that “courts routinely review executive decisions with far greater security implications than this Order”, in those cases, however, the courts were reviewing government actions taken against individuals who had rights under the U.S. Constitution or federal statutes with respect to the adverse actions they faced. Those cases do not override the longstanding rule that aliens outside the United States have no right or interest in their admission to the United States that is protected by the Due Process Clause, or the rule that non-immigrants do not have a liberty or property interest in the retention of a visa.

The fourth reason is that the State’s constitutional challenges lack merit. When the State asserts that the Order violates the Establishment Clause and equal protection principles because it was assertedly based on animus against Muslims, this is incorrect. There are two separate aspects of the Order challenged here, and both are neutral with respect to religion.

The seven countries named in the Order had previously been identified by Congress and the Executive Branch as being associated with a heightened risk of terrorism. Congress has itself identified Iraq and Syria as countries where “the Islamic State of Iraq and the Levant (ISIL) … maintain[s] a formidable force”, and Congress has also incorporated countries designated as state sponsors of terrorism: Iran, Sudan, and Syria.   In 2016, the Executive Branch added Libya, Somalia, and Yemen after a review that considered “whether the country or area is a safe haven for terrorists” and “whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States.”

The Order also temporarily suspends the refugee program as to refugees from all countries, not just these seven countries, and provides that, when the refugee program resumes, the Secretary of State shall “make changes, to the extent permitted by law, to prioritize refugee claims” by members of persecuted minority religions. Laws that “give relief to a religious minority” “are in tune with the Bill of Rights,” and the Order applies equally to all religious minorities seeking refugee status “on the basis of religious-based persecution.” As the court in Massachusetts observed, the Order “could be invoked to give preferred refugee status to a Muslim individual in a country that is predominantly Christian,” so that the Order is “neutral with respect to religion.” The State asserts that the Court should “look behind” the stated basis for the Order to probe its subjective motivations because the State claims to have made “an affirmative showing of bad faith,” but the State’s allegations of bad faith are not meaningfully different from the allegations deemed to be insufficient in an earlier case, where the plaintiff had asserted that the visa was denied because of the alien’s advocacy of revolutionary Marxism and world communism, rather than his failure to comply with the terms of prior visas. Here, the State is asking the courts to take the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority.

The State also argues that the order violates aliens’ procedural due process rights. However, aliens outside the United States have no due process rights with respect to their attempt to gain entry into this country, and in any event “notice and an opportunity to respond” is not required where, as here, the challenged rule reflects a categorical judgment. In an earlier case it was decided that where a rule of conduct applies to more than a few people, individuals affected do not have a constitutional right to be heard before a matter can be decided.

3. The State also argues that the injunction does not impose any irreparable harm.

But the injunction reinstates procedures that the President determined should be temporarily suspended in the interest of national security. The Order temporarily suspends entry of aliens from seven countries previously identified by Congress and the Executive Branch as raising heightened terrorism-related concerns, and this suspension terminates in 90 days, once concerns relating to screening practices can be addressed, as necessary, “to prevent infiltration [into this Nation] by foreign terrorists or criminals”. Similarly, the temporary suspension of the U.S. refugee program will be lifted after 120 days, once the Secretaries of State and Homeland Security, in consultation with the Director of National Intelligence, determine “what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States.” The potential national-security risks and harms resulting from the application of procedures (under the force of a court order) that the President has determined must be re-examined in order to ensure an adequate measure of protection for the Nation, cannot be undone. Nor can the effect on our constitutional separation of powers.

4. Finally, regardless of the plaintiff’s likelihood of success, the injunction is, at a minimum, vastly overbroad.

The State has made clear that it is seeking to protect LPRs and other nationals from the seven identified countries who were previously admitted to the United States and are either temporarily abroad or are here now and wish to travel outside this country—not aliens who are attempting to enter the country for the first time. That makes sense because the latter class of aliens have no constitutional rights with respect to entry into the country—a point the State largely conceded in the lower court. The injunction, however, bars all applications of Section 3(c) of the Order —even as to aliens who have never previously visited this country and have not yet begun the process of obtaining a visa. It also bars all applications of Section 5, even though there is no indication that any of the aliens affected by the temporary suspension of the refugee program have been previously admitted to this country. That is plainly impermissible. At most, the injunction should be limited to the class of individuals on whom the State’s claims rest—previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.