Groundhog Day: Travel Ban Fight Set for 2018 Redux

The fight over the legality of President Donald Trump’s temporary travel ban consumed much of 2017.

Get ready for a repeat in 2018.

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The federal government and plaintiffs who challenged the president’s executive order weighed in Thursday on the question of whether the case before the Supreme Court is now “moot” since the original ban has expired and the president has issued a new order.

The government urged the high court to dismiss the case on those grounds, while the American Civil Liberties Union and the state of Hawaii urged the justices to hear the case anyway.

Even if the Supreme Court does dismiss the case, legal experts said they believe the issue eventually will make its way back to the justices. Already this week, the National Iranian-American Council and three other groups filed a federal lawsuit in Maryland challenging the new ban, which dropped Sudan and added Chad, North Korea, and certain officials from Venezuela.

Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, told reporters on a conference call organized by the Federalist Society that the basic dispute is the same, albeit with key differences. For one, the mix of countries affected is different. And North Korea and Venezuela, obviously, are not Muslim-majority nations. That could undermine the argument that the executive order amounts to a “Muslim ban.”

And unlike the previous iterations, the current order has no expiration date.

Somin said the fact the order is permanent will make it harder to defend since it is more sweeping than a temporary pause. He said the government likely will point to the addition of North Korea as evidence that the order does not target Muslims.

“I suspect, however, that this gambit is not going to be very successful,” he said.

For its part, the government continues to maintain that the travel ban is not even a matter for the courts to review.

“Respondents’ statutory claims are barred by the rule that the denial of entry to aliens abroad is not judicially reviewable ‘unless Congress says otherwise’ — and far from authorizing review, Congress has foreclosed it,” Solicitor General Noel Francisco wrote in a brief this week.

Somin predicted that the courts would do the same thing in examining the new order that they did with the previous two — scrutinize statements Trump made on the campaign trail. He said that even after changing the focus from his original ban on Muslims to a territorial approach, the president equated it with Islam at least a dozen times.

There is longstanding precedent, Somin said, that even a “facially neutral” law or policy could be struck down if there is sufficient evidence that the true intent was to discriminate based on race, religion, or other protected class. To make that determination, it is customary for judges to examine sentiments expressed by the people who craft a policy.

“I think it’s pretty obvious that the campaign statements are part of that sequence and part of the historical background, but obviously people can disagree,” he said.

Somin acknowledged that a suspect presidential action motivated by bias could still stand as long as the government could demonstrate that it would have been taken anyway. But he added, “I think this will not be an easy showing for them to make because the security rationale for that order is just not that strong.”

That view is far from unanimous in the legal community.

On the same Federalist Society conference call on Thursday, Northwestern University School of Law professor Eugene Kontorovich acknowledged that it is common for judges to review statements and documents related to the development of a challenged policy.

“But all of those cases are not about campaign statements but the actual process, the formal governmental process leading up to the passage … That is to say, they never look back to before the relevant policymakers took office to what they may have thought or said,” he said.

Doing so, Kontorovich said, effectively would “disbar” Trump from making foreign policy on a broad range of matters.

“The upshot is much worse,” he said. “The idea is quite radical, I think, which is to say we are presuming that Donald Trump takes office labeled an anti-Muslim bigot and thus, any of his actions that involve Muslim countries are presumptively invalid and discriminatory. That’s very problematic, because the president is our chief actor in immigration enforcement, in foreign policy, and there are a lot of Muslim counties out there.”

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Hans von Spakovsky, a Heritage Foundation legal expert who was not on the conference call, told LifeZette that some of the Trump statements listed in lawsuits — such as former New York Mayor Rudolph Giuliani’s comment that Trump asked him how to make a “Muslim ban” legal — are obvious hearsay and would not be admissible.

“A lot of statements they cite, I think, are being taken out of context,” he added.

Von Spakovsky said the government should not have a difficult time demonstrating that the new travel ban order is facially neutral.

“It goes into great detail talking about the very extensive criteria of the Department of Homeland Security in developing the evolution of countries, and the great deal of information they were getting from all over the world,” he said.

(photo credit, homepage image: No Muslim Ban 2, Washington, DC USA, CC BY-SA 2.0, by Ted Eytan)