This is the fifth in a series of blogs in which I am trying to explain to British and other non-US readers something of the range of issues with which the court in San Francisco is now grappling. In the same way that the Gina Miller litigation in the UK Supreme Court demystified some of the legal processes that are involved when a case of high constitutional importance reaches a higher UK court, so this litigation, helped by the astonishingly helpful court website, is, I hope, performing a similar function across the water.
And the speed with which all these high quality submissions have been drafted and filed in the space of a single weekend speaks volumes for the depth of scholarship that is being made so readily available, regardless of normal working hours…
14 years ago I was at the forefront of those who were advocating electronic filing systems that would enable the processes of the English courts (and in that context, particularly our Court of Appeal), to become as readily transparent as those in the United States, Singapore and elsewhere, but English justice could never command sufficient battalions to outgun a parsimonious Treasury, and short of the UK Supreme Court and, to an increasing extent, the “business courts” contained in the Rolls Building complex, we are still incapable of putting on a similar show all these years later.
In my last blog I described how 20 different “amicus briefs” have now been filed, and in an earlier blog I showed how Judge Robart had set out his grounds for making the Temporary Restraining Order (TRO) under four main headings. Different amici are addressing different issues: so far as I can see, only one group (which includes the US Justice Association and the Gun Owners Association) is supporting the President’s ban. The brief filed by 16 states contains their reasons for asserting that the States possessed sufficient standing to bring this action, a point raised by the Government in its reply.
It should be remembered that at present all that is in issue is whether it was appropriate for Judge Robart to make a TRO last Friday night, to hold the position for a short time until his court could hear full argument on the States’ application for injunctive relief. It is a very long way from being a trial of the action, to be decided after the court heard oral evidence.
The briefs filed (or supported) by 100 technology companies and over 200 US law professors and clinicians give a useful flavour of some of the submissions the Court is receiving. The Court’s rules control the number of pages that are permitted of an amicus, and also the typeface and font size that is required.
The Technology Companies
The scale of their anger at the ban can best be illustrated by quoting verbatim from their opening remarks (omitting most of the citations):
Amici curiae are 97 leading businesses from the technology sector and other parts of the economy. A list of amici is set forth in Appendix A.
America proudly describes itself as “a nation of immigrants.” Foley v.Connelie, 435 U.S. 291, 294 (1978). We are: in 1910, 14.7% of the population was foreign born; in 2010, 12.9%. A quarter of us have at least one parent who was born outside the country. Close to half of us have a grandparent born somewhere else. Nearly all of us trace our lineage to another country.
The “contributions of immigrants,” then-Senator John F. Kennedy explained, “can be seen in every aspect of our national life.” John F. Kennedy, A Nation of Immigrants). “We see it in religion, in politics, in business, in the arts, in education, even in athletics and in entertainment.” Id. There is “no part of our nation,” he recognized, “that has not been touched by our immigrant background.” Id.
Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation.
For decades, stable U.S. immigration policy has embodied the principles that we are a people descended from immigrants, that we welcome new immigrants, and that we provide a home for refugees seeking protection. At the same time, America has long recognized the importance of protecting ourselves against those who would do us harm. But it has done so while maintaining our fundamental commitment to welcoming immigrants—through increased background checks and other controls on people seeking to enter our country.
On January 27, 2017, President Donald J. Trump signed Executive Order 13769. The Order alters immigration policy in significant respects:
- Seven-nation entry bar: for a period of at least 90 days, nationals of seven nations—Syria, Libya, Iran, Iraq, Somalia, Yemen, and Sudan—are barred from entering the United States. Order § 3(c).
- Potential expansion of entry bar: the Order indicates that this entry bar could be lengthened, and may be expanded to include individuals from any country that is determined, based on unspecified criteria, not to provide sufficient information to the United States. Id. § 3(e)-(f).
- Waivers based on unconstrained discretion: the Order permits the Secretaries of State and Homeland Security to exercise discretion in issuing visas to nationals from the seven affected countries “on a case-by-case basis.” Id. § 3(g).
- Refugee suspension: for a period of at least 120 days, the United States is suspending the Refugee Admissions Program. Id. § 5(a). If the Refugee Admission Program resumes, the Secretary of Homeland Security is to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Id. § 5(b).
The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international market place; and gives global enterprises a new, significant incentive to build operations—and hire new employees—outside the United States.
The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the Nation could not shut its doors to immigrants based on where they come from.
Moreover, any discretion under the immigration laws must be exercised reasonably, and subject to meaningful constraints.
A few more technology companies have also joined this group since the original brief was filed
The Law Professors and Clinicians
In their 12-page brief the law professors make two main points. First, that if the TRO is lifted, irreparable harm will be caused to many international students and researchers; and second,that the Plaintiffs are likely to succeed on the merits, because the Executive Order (EO) violates the due process rights of non-immigrants, and then because it violates the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA).
As law professors we have worked hard in a climate of chaos and confusion to assist international students and faculty detained at airports and stranded abroad after participating in conferences, giving talks or engaging in research.
We have also helped students and faculty navigate concerns about the impact of the revocation of their visas on their studies and employment, including the risk of being placed in removal proceedings.
In addition, we have scrambled to assist numerous non-citizens not affiliated with universities who have similarly been affected by the EO.
The State Department Notice provisionally revoked all valid non-immigrant and immigrant visas of nationals of the seven countries, subject to narrow exceptions for diplomatic visas and case-by-case determinations made in the national interest. This made everyone with immigrant visas from the seven countries, even those already within th US, potentially deportable.
The nationwide TRO currently protects thousands of international students and researchers in the US, and they will suffer irreparable harm if the order is reversed – unable to leave the country to attend international symposia or conferences, engage in overseas field research, or visit their families without suffering impediments to their return.
23,763 students with the relevant visas at 596 universities were affected by the travel ban – and this number does not include faculty embers, so that it is an under-estimate of the true numbers affected. The professors say that their universities stand to lose hundreds of millions of dollars if students from those countries are no longer able to attend school in the US.
As to the likelihood of success on the merits the professors go on to make the interesting point that the relevant rules in the First Circuit (where Boston is located) are different from those pertaining on the Ninth Circuit. In Massachusetts a different legal standard is applied, and this factor weighs most heavily in the decision. Judge Robart, on the other hand, correctly cited Ninth Circuit precedents that led him to consider all four factors on a sliding scale.
They say that the EO affects not only non-immigrants who are seeking entry for the first time but also those who have already established ties to the US – many of whom have already been in the US for years. They had no notice, no opportunity to respond, and no individualised analysis of the risk to national security. It is not necessary in these circumstances to determine the precise content of their due process rights.
Even if the Court applies the “facially legitimate and bona fide” standard that is applied to individuals seeking admission, the EO fails to satisfy that test, because although national security may amount to such a reason in some cases, it is not legitimate when applied without any inividualised analysis to entire nations.
And even if it does provide a facially legitimate reason, the bona fide part of the test requires a Court to distinguish between good faith reasons and “pretextual excuses” – and here there is substantial evidence that the ban was motivated by animus against Muslims: a comment by former New York Mayor Rudy Guiliani is quoted in this context.
Finally, the INA statute requires that the procedure for admission to the US be set through regulation. This EO was not: it never went through the public notice and comment procedures that help ensure transparent, deliberate and well-intentioned policies, as required by the APA. It was never even vetted by key agency officials or career diplomats with relevant expertise, hundreds of whom have since explicitly voiced thei opposition to the Order.
Other complaints about non-compliance with the requirements of the INA are also listed.
“By violating INA’s plain language it is also arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law…”
And so on.
No doubt the professors will soon be dubbed “so-called professors” by presidential tweet, even if they fall short, on this occasion, of being castigated as “enemies of the people.”