Courthouse Steps: Trump v. Hawaii Decided

Operator:                                 Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law and Religious Liberties Practice Groups, was recorded on Tuesday, June 26, 2018 during a live Courthouse Steps teleforum conference call held exclusively for Federalist Society members.        

 

Mr. Dean Reuter:                    Welcome to special Courthouse Steps edition of The Federalist Society's practice group teleforum conference call, as today we discuss the Supreme Court's earlier decision today, uh, in the, uh, travel moratorium case. My name is Dean Reuter. I'm Vice President, Director of Practice Groups and General Counsel here at The Federalist Society. Please note, that all expressions of opinion are those of the experts on today's call.

 

                                                Also, this call is being recorded for use as a podcast in the future and will likely be transcribed.

 

                                                We're very pleased to welcome two return guests to teleforum today. We're going to hear opening remarks from each of them in turn of about 15 minutes or so. But then, as always, looking to you for audience questions.

 

                                                We'll hear first from Steven Giaier. He's the General Counsel of the House Committee on Homeland Security and he'll be followed by Professor Carl H. Esbeck, the R.B. Price Professor Emeritus of Law at the Isabelle Wade & Paul C. Ly at the University of Missouri School of Law. With that, gentlemen, uh, welcome. Thank you for joining us, especially on such short notice. And Steven Giaier, the floor is yours.

 

Mr. Steven S. Giaier:              Uh, great. Thank you, Dean. And, uh, good afternoon to everyone on the call. Thanks for joining us today. Um, Trump v. Hawaii: a case that is no doubt gotten a lot of attention, uh, and one that you're certainly familiar with. I'm going to, uh, start out with a very brief, sort of, background, uh, of, of the case, uh, as I'm sure that a lot of you are, are, are very aware of, uh, what's been going on.

 

                                                Um, so we'll just start in January of 2017. Just, uh, one, uh, one week after the inauguration of President Trump, he issues an Executive Order that, uh, prohibits travel from seven countries, that being Iran, Libya, Somalia, Sudan, Syria, Yemen, and Iraq. Um, that was immediately challenged, uh, in courts and was successfully challenged in courts both in the, uh, Western District of Washington State and then later in the Ninth Circuit.

 

                                                Uh, after that, that successful challenge, uh, the, uh, administration issued a new Executive Order, which was, uh, more or less the same but with a little more meat on the bone, if you will, providing a little more justification. And also, excluding, uh, the nation of Iraq from, uh, from the list of prohibited travelers. And so, that just left Iran, Libya, Soma-, Somalia, Sudan, Syria, and Yemen.

 

                                                That, too, was challenged. Uh, in both of those Executive Orders one and two, it, uh, required a review, uh, led by the, uh, Secretary of Homeland Security to, uh, sort of do a, a nation-by-nation worldwide review to see, uh, uh, who has, uh, insufficient screen-and-vetting standards that would, uh, sort of, uh, I guess, uh, be a weak point, uh, and would not adequately, um, uh, screen and vet individuals -- dangerous individuals who might be coming from their country to ours.

 

                                                Now, as I said Executive Order number two was also, uh, challenged in court. It was also, uh, successfully challenged in court, uh, at the district court level. Um, uh, and then it was appealed up to the Ninth Circuit, uh, where the Ninth Circuit, uh, uh, affirmed that, that challenge to the Executive Order number two. Um, and then it was appealed to the Supreme Court. Uh, the Supreme Court limited the injunction on that, uh, and then -- but then allowed the review—the worldwide review—to go forward.

 

                                                And it did. Uh, that was, uh, that happened in the summer of 2017, last year. They put the case, uh, to go on the docket in October of 2017. And then over the summer, they conducted the worldwide review, and that -- from that worldwide review became this proclamation, which is now at issue here. Uh, because they issued this new proclamation and it superseded Executive Order number two, the Supreme Court, uh, mooted the case and took the, uh, the, the case off the docket for October.

 

                                                As you, uh know, uh, the new proclamation, uh, was challenged in court, once again in Hawaii, where it was, uh, struck down; and then at the Ninth Circuit, where it was again struck down; and then appealed to the Supreme Court. This time the Supreme Court said, "We are going to list the injunction completely and allow the Government to implement the proclamation and we're going to put it on the calendar for April," which they did. They heard it -- the, uh, uh, the case in late April. It was the last case they heard, uh, in the, uh, in 2018 of this year.

 

                                                And so, we all waited to see what would happen. And, of course, the, uh, uh, the two big issues, um, uh, that were before the court was the 'did this proclamation, uh, uh, exceed the authority of the President under the, uh, the INA?' And then—uh, that's what I'm going to be talking about today—uh, and then also did it, uh, -- did, uh, the President's actions, words, et cetera, uh, and the proclamation violate the Establishment Clause, which, uh, uh, uh, Carl is going to talk about, uh, in a few moments.

 

                                                Uh, on the INA. So the, uh, the, uh, the big statute, uh, the big provision within the INA, uh, at issue is Section 1182. That is the one that is found throughout, uh, all three Executive Orders, and it is a broad grant of authority, and I'm just going to quote it verbatim for you here. It says—this is Section 1182, subsection (f):

 

                                                "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

 

                                                Okay. Right off the bat, uh, uh, the, uh, Chief Justice of the United States, uh—Chief Justice Roberts—says that the plaintiffs arguments "fail to overcome the clear statutory language" of the relevant INA provisions. So that's uh, uh, bad news right off the bat for, for the, uh, the challengers here. He says that, uh, in Section 1182 (f) and this is a quote, "exudes deference to the President in every clause," uh, end quote. The, uh, 1182 (f), uh, vests the President to impose, uh, entry restriction in addition to those elsewhere enumerated in the INA.

 

                                                The plaintiff had, uh, had argued -- the plaintiffs had argued that it needed to be similar to other, uh, um, restrictions that were in the INA and the Chief Justice says, no he can go be-, uh, above and beyond is a very broad grant of authority. He said, uh, uh, that there is just one sole prerequisite of 1182 (f) and that is "that the President must 'find[]' that the entry of the covered alien[] 'would be detrimental to the interests of the United States.'" And he said that by this worldwide review, where they went out and they checked with every country and they found who was good and who was bad and they listed out the people that were not, not good, uh, and who needed improvement. He said that "fulfilled that requirement," that sole prerequisite.

 

                                                Uh, so then he moved on to the, uh, to the next argument of the plaintiffs—and by the way, if you read through the, uh, the, uh, uh, opinion here, the Chief Justice very methodically and very systematically goes through just about every clause of 1182 (f) and, and, uh, just picks apart the plaintiffs, for lack of a better term. I can't think of a, a more proper term to say. He just, just dis-, discards every, every, uh, argument that the plaintiffs made.

 

                                                So the plaintiff's next argument were that the findings within the proclamation itself, uh, was detrimental. As you may remember when I read the, uh, the statute, it says that the President --whenever the President finds that the entry of aliens would be, dot, dot, dot, dot detrimental to the interest of the United States, uh, the plaintiffs were saying that he -- that the President needs to make a, uh, a, a, a, a vast—I don't want to say that. Vast is wrong, the wrong word—he needs to make a, uh, sufficient finding on paper, uh, that, uh, i-, it comports with, uh, 1182 and that it is a, a, uh, a reasonable, uh, step to take.

 

                                                The Chief Justice said that the argument is grounded in, in the premise that the President of the United States is required to even make such a finding and then explain it under 1182 (f). He said that that premise is, quote, "questionable." However, that doesn't even matter in this case because in this Executive Order—in this proclamation, excuse me—uh, the President, uh -- this is the most detailed proclamation ever made under 1182 (f). He, uh, cited one instance from President Clinton, where the proclamation was one sentence. Uh, one from Resident(sic)-, uh, President Reagan, where it was five sentences, and in contrast the one from President Trump, this one that is under review is 12 pages long.

                                               

                                                So, um—and this was also on full display in oral argument, even, uh, as I noted on a, on a previous teleforum, Justice Kennedy just by himself without being provoked or questioned or whatever, just said this is the most detailed, uh, um, I, um, proclamation I've, I've ever, ever, ever, uh, uh, seen in this context. And so, you could tell that it was going that direction, uh, uh, from the beginning.

 

                                                And then, finally the Chief Justice said that "a searching inquiry into the persuasiveness of the President’s justifications is [at odds] with the broad [text of the statute] and the deference [typically] accorded the President in this [issue area]." So not only is it well within the, um, the confines 11-, of 1182 (f), which is quite broad, but pair that with the deference that we normally give to the President in, uh, uh, the areas of, uh, uh, immigration, national security where they overlap, then, uh, just, uh, right there, uh, then and there, uh, we're good.

 

                                                He moves on that, uh, uh, the Pre-, the plaintiffs said that by the words of the text—they used the phrase "suspend the entry of aliens,"—plaintiffs said that the word "suspend" means that there has to be an end-fixed, uh, that should be a fixed-end date. So, like, this proclamation is only good for six months or for a year or whatever. Uh, uh, Chief Justice Roberts says no, you do not have to have a fixed-end date. He said that the President "may link the duration of [travel] restrictions, [either] implicitly or explicitly, to the resolution of the" -- of a "triggering condition."

 

                                                So, for instance, in this, uh, proclamation that, uh, triggering condition is that, uh, if a nation, uh, does, for lack of a better word, you know, get its act together, improve its screen-and-vetting, then, uh, that's, that's a good enough, uh, um, um, time, time element if you will. Uh, and indeed that's what happened in this case. I mentioned that one of the original eight countries, uh, on the, uh, on, uh, the proclamation was the nation of Chad. Within six months, Chad had improved its screen-and-vetting and, uh, and the, uh, the administration removed them from the list.

                                               

                                                Uh, and another example that Chief Justice, uh, Roberts gave was that President Reagan issued a proclamation that said, uh, that, uh, uh, restricted travel, quote, "until democracy has been stor-, restored in Panama." So it's -- if that, uh, um, sort of less than concrete, uh, timeline is, is, uh, uh, uh, good, is, is, uh, allowable, then so is, so is this one.

 

                                                Uh, uh and then finally, uh, the plaintiffs argue that, uh, uh -- or I should say, um, that the Chief Justice said that the 1182 (f), uh, permits a President to restrict entry of a class of aliens. Uh, the plaintiffs said that, uh, a, quote unquote "class" it needs to be a group of individuals who share a common characteristic apart from nationality. They said that, uh, nationality is too broad and not allowable under -- should not be allowable, uh, under, under 1182 (f), and the Chief Justice said nope. Uh, he said that goes against the very plain text of, of 1182 (f), and that a class defined by national-, nationality is, is very much allowable.

 

                                                Uh, he then moves on to a sort of legislative purpose and then legislative history of 1182 (f). I'm not going to whol-, spend a whole lot of time on it because he didn't really spend a whole lot of time on it. Uh, he, uh, uh the basic argument from the plaintiffs was that, uh, uh, the President can supplement but not supplant other provisions of the INA. Uh, the Court, uh, Chief Justice Roberts simply said that we're going to assume that 1182 (f) does not allow the President to override other provisions of, uh, of the INA, but that, that's not what he had here.

 

                                                Uh, uh there was this additional argument, uh, that's, uh, that came into play in, in this round, uh, which is that the plan-, plaintiffs began arguing that 1182 was only made, uh, uh, should be only made, uh, available in, like, accident circumstances, uh, national emergency, and Chief Justice said no, if that was the case, then Congress had every opportunity to write that into the law. And they did not do that.            Uh, uh I guess that's pretty much all I'm going to say about, about legislative purpose, uh, and, and history with, with sort of a brief, uh, excerpt of -- Chief Justice said, it's "Given the clarity of the text, we need not consider such extra-textual evidence." But then he talked about it anyways and shot it down anyways.

 

                                                Um, uh, the -- then we turn to, uh, Section 1152 (a)(1)(A). This was the other section of the INA that was really, uh, the other big one that was, uh, brought into the fold here, that said "no person shall…be discriminated against in the issuance of an immigrant visa because of the person’s race, sex…" base-, uh, excuse me, "place of birth, or place of residence." The plaintiffs had argued and indeed the Ninth Circuit held that, uh, you should interpret this provision as prohibiting the, uh, nationality-based, uh, discrimination throughout the entire immigration process. And, uh, trying to keep this as brief as possible, uh, uh, 1182 (f) talked about entering into the United States, whereas in 1152 (a), that talked about, uh, the issuant of an immigrant visa. These are two very different, uh, distinct things within the, uh, sort of entry process into the United States.

 

                                                A visa is given to an individual at a foreign post, a foreign embassy, a foreign consulate, uh, uh, and regardless of, um, -- even if that person gets a visa, that does not guarantee that person entry into the United States. You don’t get entry into the United States until you show up at an airport, uh, or seaport, or land port, or whatever, uh, at a port of entry and a customs officer, uh, uh, inspects your documents, uh, and allows you entry into the United States.

 

                                                And so, the Chief Justice, uh, noted very, uh, uh, ver-, uh, very brightly that, that distinction, um, that, uh, the, uh, between, uh, visa issuance and entry into the United States, even if a consulate officer gives you a visa, you're not guaranteed entry. Whereas Section 1152 only discusses immigrant visa. It does not discuss entry that way that 1182 does very broadly.  And so, uh, you can't say that the, uh, the, the words of 1152 (a), uh, uh, barring discrimination for a whole host of reasons, you can't just, uh, take that and apply it wholesale to, to 1182. It just, uh, it just doesn't, doesn't work that way.

 

                                                Uh, and then, uh, that's pretty much I guess, where I'm going to leave it. I'll just, uh, say that he, uh, really, really drove it home. And, uh, the final paragraph of the statutory section, uh, where he said under the plaintiff's reading of the statute, "the entry restrictions in the proclamation on North Korea…would also be unlawful." They didn't even challenge that. Uh, uh, they, they challenged, uh, uh, uh, uh, all the nations except North Korea and Venezuela. He said so -- but under their reading you'd have to kick out, uh, the North Korea, uh, uh, rest-, restriction. He said, "Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific, uh, foreign nation, or even if the [U.S.] were on the brink of war."

 

                                                So, uh, in summary, or I guess in conclusion rather, uh, the, uh, the preface is saying that is a win for Trump and it is. Um, I guess I view it, uh, in a larger sense as, as least solely on the statutory side, as a win for the Presidency and the Executive Branch. They could have done some real damage to his authority under the INA, and, uh, and where, uh, the national security and immigration, uh, merge, um, which they obviously did not do. Uh, and most notably the dissents really do not touch, uh, the statutory stuff. Uh, it was a, a rather clean win for the Executive Branch on, uh, on the, the President's authority under the INA. Uh, which probably leads me to believe that it was more than five votes on, uh, on the statutory side, although that's not, uh, evidence within the text of the opinion itself. Um, I'm going to leave it at that, and I will hand it over to Carl to talk about, uh, uh, the constitutional stuff and the Establishment Clause and, uh, take it away.

 

Prof. Carl H. Esbeck:              All right. Thanks, Steve. Let me start with the, uh, the pleadings. Um, the pleadings not only, uh, stated a claim under the Establishment Clause, but also the Free Exercise Clause and also, uh, RFRA—the Religious Freedom Restoration Act. But certiorari was granted alone on the Establishment Clause. So there's a little bit of asymmetry here in the opinions. And that's going to come out as I sort of unpack, uh, the, the five opinions.

 

                                                Let me also say just a, a word about, uh, the, uh, procedural posture. This, this came to the Court on preliminary injunction and at the end of the majority opinion, the case, uh, the Ninth Circuit was reversed, that the case was remanded for further proceedings in accordance with the opinion today. So it goes presumably back to the District Court, where, um, uh, a lot of things can happen. Among other things, uh, these claims that were not before the Court today will be before, uh, the District Court and therefore, can be reinvigorated.

 

                                                Um, let me also say just, uh, uh, a word about the, the parties, uh, which really matters, uh, to the Establishment Clause claims. Uh, there's essentially two parties that are before the Court. One is the State of Hawaii and, uh, their claim for both injury under the Establishment Clause but also for standing is that they had economic harm, in particular the state university couldn’t recruit the faculty that they wanted to, couldn’t recruit some of the students that they wanted to pursue, uh, general loss of revenue to the State. So, essentially, pecuniary or economic harm.

 

                                                Uh, whereas, uh, the, the other cluster of plaintiffs, there were three individuals, uh, who were of the Muslim faith. They were U.S. citizens, and then there was also a Muslim association. And their claim to injury or harm, uh, they of course had, uh, religious harm, but in particular, uh, as U.S. citizens they had a statutory right to bring, uh, near relatives to the U.S. for settlement, and they were in the process of relocating, uh, family to the U.S. when those, those family members were caught, uh, by the Executive Order and later the, the proclamation. So that was their concrete injury for both standing purposes and, uh, Establishment Clause injury.

 

                                                Same thing with the Muslim association. It had members, uh, who were bringing family here and then also the association alleged, uh, that they were losing membership because the, the President's, uh, language and Executive Order was, uh, increasing discrimination against Muslims so nobody wanted to, to sort of stick their head up by being a, um, a public member of a Muslim association. So they were losing membership.

 

                                                Now, um, so, uh, so the, the, the, the Chief Justice here, uh -- well, standing was challenged as were other aspects of justiciability. The Chief Justice kind of blew right past that and said, well, we're simply going to assume for purposes of today, uh, that the case is justiciable.

 

                                                And, and so, then he moved to the, the next level and the Solicitor General argued a 45-year-old case which, uh, was, um, uh, a standard of review, which was highly, highly deferential to the government in this kind of a, a case. It was called Kleindienst v. Mandel. Uh, so it gives rise to the Mandel rule and the Mandel rule is essentially -- it applies where you have a foreign national outside of the United States and he or she is trying to get a visa to enter the United States lawfully, and the visa is refused. And so, that leads to a lawsuit. Well, in that kind of situation because of the Executive's, uh, constitutional authority, uh, in the area of, of immigration, uh, it's going to be given highly deferential review under Mandel. Essentially the government just unilaterally says, well, here's the reason and it's a legitimate reason and it's bona fide. In other words, it's truthful. And that's, that's the end of the matter. As long as it's facially, uh, legitimate and bona fide, the, the Court doesn't look behind that unilateral assertion by the government.

 

                                                So that's what the Chief Justice called the conventional Mandel standard of review, which is what the Solicitor General urged here. Uh, the problem that the Chief Justice had—and, of course, he has just a five justice majority here so he can't lose any votes—is that, uh, at least Justice Kennedy thinks that there ought to be exceptions to the Mandel rule, where the plaintiffs can come forward, present evidence, challenge the g0overnment's assertion at least to some extent, and presumably, other more conservative justices in the majority, uh, would've stuck with the conventional Mandel rule. So the Chief Justice, um, simply says, "Well, today for ours, we're going to give rational-basis review." And of course the dissent, Sotomayor, points out that there was -- that that was unprecedented, uh, which it was.

 

                                                But the, um, the Chief Justice nonetheless said for the Court says, well, we're going to give rational-basis review, and that is, uh, somewhat more rigorous because the unilateral assertion by the government can be challenged, uh, to, to see if it's a, a pre-textual. And so, then the Court proceeds to do rational-basis review, and, uh, and they find that the, that the proclamation, uh, is rational. And they essentially look at the text and look also how the proclamation was administered. There're various exceptions and those are being applied. Uh, there're various waivers and this came out in oral argument the waivers are being implemented from time to time and so on.

 

                                                So, uh, so the Court announces that, um, that it, uh, satisfies, uh, rational-basis review. Now, uh, so that means that, um, a, a, a constitutional, uh, claim here by the plaintiffs—in this case under the Establishment Clause—is getting mere rational basis review and that juxtaposes a, a bit of a struggle between footnotes here. The Chief Justice, uh, uh drops a footnote five where he justifies, uh, this lighter standard of review for constitutional claim. And Sotomayor drops a footnote six in her dissent and I'll talk a little bit more about that in just a little bit.

 

                                                But let me, uh, back up and, and just talk about the Establishment Clause, uh, uh, and, and -- state of the law. And this, of course, is going to be very much present, uh, uh with the Court because this case is very much alive on remand. So there's basically two lines of Establishment Clause cases that could possibly, uh, be applicable here.

 

                                                One gives rise to a rule that the government cannot prefer one religion over another religion. But the situation there assumes that you have two religions, the government is favoring one. So that's the religion being established, and they're disfavoring another one. Here the State of Hawaii can't make that argument. They're not a religion. They don’t have a religion so they're not in a, in a, in a position to, to put themselves in, into the struggle between, uh, two religions, one of which is being established.

 

                                                But the individual, uh, claimants here are Muslim, and, of course, the Muslim association. Uh, they are a religion and they can say, well in this struggle between two religions, we're the one that's being harmed. But the problem is what religion is being advantaged or, or, or, or, uh, advanced, uh, or established in some way? And, uh, it's speculative to say some other religions, say Christianity, Judaism, Buddhists are being advantaged by this proclamation. It's pretty easy to see a colorable claim how the plaintiffs are being hurt, but it's hard to see anything but a speculative advantage to some other religion. So that claim doesn't seem to work out.

 

                                                But the other line of authority is that the government can favor religion over the secular. In other words, it is an establishment, uh, to have a religious preference. And in this particular case, the harm could be economic harm or it could be religious harm. So the State of Hawaii, uh, which has economic harm could make this kind of a claim.

 

                                                And sort of a classic case to illustrate this is, uh, a municipality in Massachusetts had an ordinance where they wouldn't issue a liquor license, uh, to a restaurant or a tavern if there was a church within 500 feet, unless the church gave permission for the issuance of that liquor license. So that was a case of preferring religion over the secular economic. And the Court struck that down as an establishment of religion. Some of the listeners will recognize that as Larkin v. Grendel's Den.

 

                                                So -- but here, the proclamation is not an advantaging of religion over the secular, but if anything it's the reverse. It's the advantaging of a secular concern—national security—over religion. So this line of cases also doesn't seem to work out for the parties.

 

                                                But now, let me go back to, uh, the Court's opinions here. Justice Kennedy says he joins fully the majority opinion, but he writes separately and it's -- he says two things, which are interesting. Um, he, he talks only about the Free Exercise Clause, nothing about Establishment. And the Free Exercise Clause was not in the grant of certiorari. That's kind of interesting. And he cites, uh, the rule here—remember under footnote five of the majority opinion, it's, uh, rational-basis review—but he, he quotes the majority favorably. He says, uh, that the standard that, that we, we would satisfy, uh, um, the plaintiffs could satisfy that this, uh, proclamation is not rational by showing that there was animus against Muslims. And he cites for that Romer v. Evans. And that's interesting because that's neither an Establishment Clause case not Free Exercise Clause case, but that's an Equal Protection Clause case. All right?

 

                                                Now, the, the next concurring and the only other concurring opinion, was by Justice Thomas. And he writes at length about an issue not, uh, uh, directly before us and he objects to the nationwide, um, preliminary injunction that's being entered here by federal district courts, uh, and in parallel cases. Uh, but he, he devotes just one sort of meaty paragraph to the Religion Clause claims. And he says that the reasonable-observer test is not the Establishment Clause test, which, uh, is operable. And that's in direct response to a dissent by Sotomayor, who does use the reasonable-observer test for the Establishment Clause. So more on that when we -- when I get to, uh, the dissent by Justice Sotomayor.

                                               

                                                Uh, the first dissent, though, uh, because of his seniority is by Justice Breyer. He's joined by Justice Kagan and it's real straight forward. He talks only about the Free Exercise Clause. Again, interesting because that clause was not in the grant of certiorari. He cites, uh, Church of Lukumi case, which is, uh, sort of a leading case from 1993, which says that the Free Exercise Clause is violated if there is intentional discrimination by the government. He also cites the Masterpiece case from earlier, uh, this, uh, month.

 

                                                But, but when it comes to the standard, he too says that the standard is animus. But he finds—and joined by Justice Kagan—that he says on balance the facts convince him—and Justice Kagan—that, uh, the President did have animus here against Muslims and therefore, the proclamation, uh, violates, uh these Free Exercise Clause cases. So pretty straightforward, uh, opinion.

 

                                                Then the last dissent is Justice Sotomayor joined by Justice Ginsburg. She talks solely about the Establishment Clause, which is understandable. That's the only clause in the cert grant. But given that Justice Breyer talked only about the Free Exercise Clause, uh, you, you have to wonder is there a division or split between Breyer on the one hand and Sotomayor on the other hand as to which clause is applicable here.

 

                                                In any case, uh, she uses the Establishment Clause, uh, and she uses, uh, as the appropriate test, the reasonable-observer test. Now, the -- there used to be—and some say still is—a three-part Lemon test. That goes all the way back to 1963, I think, uh, when it was a two-part test and then it, it grew a third part, uh, in the early 1970s. Well, the Lemon test morphed into -- under the leadership of Justice O'Connor into what was called the null-endorsement [sp] test. And the null-endorsement test now apparently has morphed into the reasonable-observer test. And Justice Sotomayor cites a bunch of cases and says this is the test that, uh, we ought to be using. And she, uh—I've mentioned her footnote six which is worthy of looking at—and she points out, uh, something which is true. The Chief Justice in his majority opinion says, look, I'm not making today an Establishment Clause ruling, which is technically true. But he's disposing of the Establishment Clause claim before you ever get to it because of the rational-basis review.

 

                                                Uh, So-, Sotomayor says, well, but, but while you may not be technically discussing the Establishment Clause and its substance and what the test should be, you're impacting the Establishment Clause in that you're effectively cutting it off before we ever get to the Establishment Clause test. So it impacts the Establishment Clause because we, we don’t get to use it here.

 

                                                So, uh, the, the, the taste by Justice Sotomayor on slip opinions, uh, pages two and three, she lists, um, what must be, uh, ten different cases by the Supreme Court, uh, unpacking the Establishment Clause standard. And they are indeed Establishment Clause cases, but in -- and there're -- but in each instance, uh, there're cases where the government was advancing religion over the secular, not the reverse of what we have here, which is an advancement of the secular over the religious. If you have the advancement of the secular over the religious -- and that would be a Free Exercise claim. It might be a, a, a, a legitimate claim; it might not in the end, uh, pan out. But, but that's how you would, would plead that kind of a case. And the reason goes back to the text. Uh, you don’t make a law respecting an establishment. Punishing the religion over the secular is not making an establishment; it's the reverse.

 

                                                So, so there, there, there's going to have to be some decisions, uh, in proceedings below to sort out just whether there is an Establishment Clause case here at all, although there's dicta in these cases suggesting that, uh, that, that there might be. But as dicta, it's not a, a dicta that aligns with the facts, which in every case, it's a case of the government advancing religion over the, the secular.

 

                                                So presumably, on remand -- so now you again have a viable Free Exercise case, uh, claim. But, um, presumably, the Free Exercise claim would be subject to footnote five in the majority opinion so it's only going to get rational-basis review. On the other hand, there's also going to—again, we're assuming the plaintiffs pursue this case—uh, they're going to, uh, go back again to the Religious Freedom Restoration Act and footnote five doesn't apply to, uh, RFRA. Footnote five only says we do rational-basis review as to constitutional claims. RFRA is a statutory claim. So that'll be interesting and as most listeners know, the, uh, uh -- a RFRA claim has a strict scrutiny review, far more rigorous than rational-basis review.

 

                                                All right. With that, uh, let me turn it back to you, Dean, and, and you can, uh, curate our questioners here.

 

Mr. Dean Reuter:                    Thank you both. Uh, let's, uh, go straight to audience questions. In a moment, we'll all hear an announcement that will say that the floor mode is on. After you hear that announcement, if you have a question, push the star button and then the pound button on your telephone.

 

                                                Once again, we've got quite a few callers on the line. Just a couple questions. If you like to join the queue, push the star button then the pound button on your telephone. I will hold my questions for now. Let's turn to the first caller.

 

Mr. Bob Fitzpatrick:               Hi, this is Bob Fitzpatrick. Uh, fantastic presentation as always. Much appreciated. Um, quick question. Uh, on remand is there going to be, uh, discovery permitted in this case? I read a fascinating piece the other day. I forget where I saw it, but allegedly—and I emphasize that—the lawyers in Korematsu lied to the Supreme Court about the, uh, Japanese statistics. Obviously, uh, if there is any exaggeration going on in this case -- and I'm not suggesting there is. I'm just curious as to whether on remand there would be discovery.

 

                                                And I do have a second question real quick, and that is do either of the holdings on standing have any—particularly the non-economic holding—have any implications for some of the data-breach standing cases that have been kicking around in the appellate courts, one of which I think is up in a standing context before the Court next term. Thanks ever so much.

 

Prof. Carl H. Esbeck:              Uh, wow. Steve, do you want to --

 

Mr. Steven S. Giaier:              -- I was going to -- I was going to defer to you on that one.

 

Prof. Carl H. Esbeck:              All right. Let me take the standing question first. Um, it, it may be a little strong to call this a holding on standing because the Court -- the Chief Justice for the Court said we're simply going to assume that this case is justiciable. And then he mentioned a couple of other doctrines of justiciability, but he didn't mention standing.

 

                                                Now, to, to be sure the Solicitor General and I presume the U.S. attorney who's handling this have been challenging standing right along, but -- so, so it's not -- it's -- I would say it stops short of being holding. Uh, it's, it's we're simply assuming—you could almost saying assuming for purposes of this case. Um, the question as to remand—Steve, you might want to add to that—but, uh, on, on remand, uh, can the trial record be -- in fact there was no trial record. This was handled on preliminary injunction. So it was handled on motion. Presumably, there were, uh, declarations and, and perhaps, uh, uh, documents—authenticated documents—presented by declarations. But, uh, uh, I don't believe that there was actually any testimony taken or answers to interrogatory.

 

                                                But what the Chief Justice says at the very, uh, this is the second to the last of his pages says: "The case now returns to the lower courts for such…proceedings as may be appropriate." So it goes back to a district court, a district court judge that, uh, saw this case differently on the merits. So, so it's an -- I, you know, I think if the district court wants to take evidence, he or she certainly can consistent with the remand order. The only restraint on the remand is the, the court can't be inconsistent with today's opinion.

 

                                                So, for example, what would that look like? Well, I would presume that the U.S. attorneys are going to say, "Well, you know, the issue here is footnote five, standard of review." And so, any evidence would go to that standard of review, which is rational basis and, and so on. But, but yes, if the district court allows it, and I don't know why they would deny it, the parties could present additional evidence and they certainly can present new argument.

 

Mr. Steven S. Giaier:              And I, I guess I would only add to that in, uh, I wouldn't be surprised at all, assuming that they make that step to go back and, and do more proceedings on this case, under the different issues that weren't before the Supreme Court here. Um, I would bet good money that they go the same route that they did here, which was just, uh, injunction. And then we end up in, in the same type of situation what we have here where there was no substantial discovery or any sort of discovery really at all. I could be wrong.

 

Prof. Carl H. Esbeck:              Yeah, I, uh, I don't know. My, my hunch, I, I agree, Steve. My hunch would be that the assistant U.S. attorney is going to resist discovery.

 

Mr. Bob Fitzpatrick:               Absolutely. Thanks ever so much.

 

Mr. Dean Reuter:                    Two questions pending. If you'd like to, uh, ask a question, push the star button, then the pound button on your telephone. For now, let's head in the direction of the next caller.

 

Mr. Bill Hodes:                       Hello. Bill Hodes from Florida. Um, I, uh, agree with your imply-, -- with everybody's implicit assumption that the idea that you can use what, uh, the President had said—uh, anti-Muslim things—to, you know, to get behind the order and go to motive, that that is, uh, very well -- it was a ridiculous argument and nicely put to bed. But the statutory argument, um, it seems to me that there is a huge open question. I wondered whether it had been resolved in any significant way, and that is literally, the cu-, -- what is meant by the coverage, from the Order, to the District Court, to the Circuit, to the Supreme Court, how is the concept of exactly who is covered being handled? If you talk about, uh, either nationality or, you know, your national origin or whatever it is, how, how do the, the various courts and how does the Order distinguish between people who were born somewhere and then go live someplace else as kids or their adopted by, you know, Teresa May in England and grow up as English schoolchildren? Do you retain your Sudanese birth disabilities, and so on? How, how does that all shake out?

 

Mr. Steven S. Giaier:              Right. So, um, and you'll have to forgive me. I'm probably not going to give you a very great answer on this because it's been a while since I read the proclamation itself. But, uh, there is, um, -- obviously, I've -- I want to say that the term is 'nationals from, from those countries.' Um, now they, they do have obviously exemptions throughout and waiver authorities throughout. Um, they have for instance, uh, Iranians coming to the United States on a student visa are not, uh, are not, uh, um, uh, covered under the, under the proclamation. Uh, also for dual nationals, uh, so in the, in the instance where you were speaking about maybe someone from Sudan who was adopted by Teresa May and now has a British passport, so long as that individual presents that British passport at a United States port of entry, they're fine. Uh, now, if they were to present their Sudanese passport, then they're not fine. So it's just a matter of sort being smart there. Um, uh, so, uh, that's sort of the best I can do right now with my, my limited memory. Uh, uh, it's been several months since I, I've read the text of the proclamation. I'm, I'm, I'm sorry there. --

 

Mr. Bob Hodes:                      -- That's all right [inaudible].

 

Mr. Steven S. Giaier:              -- There are plenty of exemptions and waivers throughout the, throughout the, uh --

 

Mr. Bob Hodes:                      But it, but it sounds like on the baseline definition, you're, you're equating, uh, being a national of X, Y, or Z has holding a passport from X, Y, and Z?

 

Mr. Steven S. Giaier:              Uh, uh, I, I, I hesitate to answer that question because I, I, I just can't quite, quite remember. Um, but, uh, uh, this -- I mean, the Supreme Court Chief Justice Roberts said that you can under the law, uh, separate by class, uh, nationality. Um --

 

Mr. Bob Hodes:                      Yeah. Oh, no, I, I get that, but I was just wondering what went -- how do you define nationality? And one quick -- just a quick follow-up that's really related to the back door to that point, and that is if, if the, the, the President had in this case given 12 pages of, of justification for his finding with a capital F, would it still be open to the courts to find that it was findings that are totally arbitrary and garbage? I mean, suppose he had done a long thing about how 'I'm going to exclude people who are over six foot two.' And that's it. And he goes through a whole long thing about the aggressiveness of football players or whatever it is. Is, is, there still a role for the courts in looking behind it, behind findings as to arbitrariness?

 

Mr. Steven S. Giaier:              From a statutory, uh, standpoint I, I will say that under this opinion, um, uh, given not only the page count, but of the, uh sort of as I call it the worldwide review that accompanied it, um, were DHS went out and talked to foreign, uh, government, after foreign government, after foreign government, um. Uh, now, then it was, it was more than adequate, so they said. Now, they said -- they also said that, uh, uh, any sort of justification, uh, any sort of requirement to rid the statute as requiring a justification is quote "questionable." So, uh, in, in that, in that reg-, -- now obviously, that has to apply to aliens or classes of aliens. So, uh, you know, six foot two from anywhere in the world, um, I don't know…uh, gosh. If, if, uh, uh, if accompanied by some sort of rigorous study that, uh, uh, that made it -- made the proclamation I guess reasonable on its face, I, I -- you can make the argument, but, but who, who the heck, you know, really knows? All I can tell you is in this context here, it was, it was more than adequate.

 

Mr. Dean Reuter:                    We now have three questions pending so let's carry on.

 

Mr. Ken Klukowski:               Uh, yes, hello, this is Ken Klukowski. Uh, quick question regarding the Establishment Clause. Uh, Mike Carvin and I and several other attorneys yesterday filed a cert petition in the, uh, the American Legion v. American Humanist Association, in which the Fourth Circuit had struck down, uh, a 90-year-old war memorial because it includes a cross shape, and of course, we tie it in with Arlington National Cemetery. And in our cert petition we openly questioned the continued, uh, vitality of the Lemon test, either in its original 1971 iteration or in Justice O'Connor's endorsement test revision of it. Given how, uh, the plaintiffs, uh, thoroughly argued, uh, both version of Lemon in this case and how it was discussed in oral argument, uh, would you, would you say that there was no Establishment Clause holding here or would you rather say that the Court held that, uh, if, if that test is a valid test at all, it just certainly doesn't apply in the immigration context?

 

Prof. Carl H. Esbeck:              I'd say it's the former. The Chief Justice says there's -- we don't reach the Establishment Clause question so that's going to be the law of the case. And this is going to be treated as a national security, um, uh, uh, immigration of foreign national's case and therefore, the lower standard of review in footnote five. So your, your case is all domestic, uh, I, you know, I don't, I don't think that there's any holding here that is going to apply to your case. Now, there's a lot of interesting discussion, though, as to where these justices are on, on that question, Lemon versus null-endorsement versus objective observer or, or something else.

 

Mr. Dean Reuter:                    Uh, thank you caller. Uh, two questions pending so let's, uh, move to our next caller.

 

Caller 4:                                  Yes, what's up? Thank you for your presentation. Um, I've only read excerpts of the opinion. It's been in, in the, uh, in the press. Uh, Sotomayor's, um, I guess dissent, you know, basically says that is a total and a complete ship out of Muslims entering the United States because a policy masqur-, masquerades behind a façade of national security concerns. Um, [inaudible 50:53] and Indonesia's not on the list, Saudi Arabia…

 

                                                But in any case, let's assume this is, uh, a, an actual Muslim ban, actually, uh, the Executive Order comes actually comes out and says, "We don't want Muslims in the United States any-, anymore." Uh, uh I guess I'm kind of wondering where in the Constitution does, uh, do we prevent -- what would cause the President -- that Executive Order to be unconstitutional? Wouldn't um -- I mean, it's not a civil rights question because they're not really, you know, foreign nationals on foreign soil wouldn’t be entitled to civil rights in the United States, and, uh, I don't see really now that really effects, uh, us establishing in -- a religion here in the United States by saying we don’t want Muslims. So could you actually, legally, say that we don-, -- come out and say this is a Muslim ban?

 

Prof. Carl H. Esbeck:              If I had that case, I'd first go to the Free Exercise Clause 'cause it's in a, uh, intentional discrimination, uh, against Islam or people of the Islamic faith. Um, in the -- and, and the, uh, the, the government would say, well, but you know, this is a footnote five case and so you don’t get, um, you don’t get a Lukumi, um, Masterpiece, Trinity Lutheran Church standard of review. You get rational-basis review. And it looks like, uh, that would be the case. But then you would -- your second claim would be under RFRA because this is the Federal Government, where you would get strict scrutiny.

 

Caller 4:                                  Right. Um, but again, these are -- these would apply to foreign nationals on foreign soil. So, on the, on the question of free exercise, the United States wouldn't prevent a Muslim who's already here from exercising their religion, you know, so long as they do so peacefully. Um, it's just a foreign policy question. Immigration, we just don’t want -- again, it could be -- I guess it's not the same as the six-foot-two example, but um, because that's not really protected under the First Amendment. There's no claim there. But, but still, um, if, if, if you're talking about foreign nationals on foreign soil, you can freely exercise your Muslim faith in Syria, um, so that there's no issue there. Um, so I'm just wondering why would it be a problem… again -- why would that conviction policy be -- uh, violate the Constitution? Sort of setting aside the wisdom of it or, you know, how obnoxious it might be, I'm just wondering where, where's the Free Exercise issue there if, if they're on foreign soil?

 

Prof. Carl H. Esbeck:              Well, if, if, uh, and I hope I understood your question because I thought you were, you were framing a, uh, a footnote five question. If you're talking about a person who is Muslim and they're already lawfully in the U.S. and now they're facing discrimination by the Federal Government --?

 

Caller 4:                                  No, no, no, no. I'm saying, um, what Trump is doing -- he's basically saying -- look, he's not talking about any sort of Muslims in the United States, or here, or any Muslims from those countries, um, that he put in his Executive Order, Executive Order that are already here. He's not talking about deporting anyone. He's just saying that any new people who are coming over, you know, they are in these countries will face additional scrutiny, there's going to be delay, or whatever. What I'm saying is let's, let's assume what his critics are saying is that this is actually a Muslim ban. So, again, Muslims are already here, not, not, not going to be touched. Um, just people who are -- who want to come here from the Middle East or from these countries, um, who are Muslims, um, do not get entry to the United States. Um would there be a Constitutional problem with it, whether it's Free Exercise or Establishment or even Protection? What -- I mean, would there even be a problem?

 

Prof. Carl H. Esbeck:              Again, your, your claim would be first of all under the Free Exercise Clause, which sounds like it would be subject to footnote five so you're going to get rational-basis review. So you would have to show that the Muslim ban is irrational. One way to show that is Romer v. Evans: animosity. If you can show that the government official held animosity towards people of the Muslim religion, you win. What -- there's -- it's -- one thing we don’t know, as a result of this case, is what if you can only show that the discrimination is intentional but it falls short of animus or malice? We, we don’t know whether that's, uh, is, uh fails rational-basis review.

 

Mr. Dean Reuter:                    Let's see if we can get our final question in her-, -- well, actually, it looks like our final question has evaporated. Uh, so we've got, uh, three minutes left. Let me give each of our, uh, experts, uh, 60 seconds to, uh, express a final thought or wrap up. Uh, and let's go in the order in which we started. Uh, Steve Giaier?

 

Mr. Steven S. Giaier:              Uh, sure, and I'll just end the same way I did before and that this sort of, uh, uh, not sort of, it does, uh, confirm a, a large amount of, uh, executive authority and executive flexibility within the, uh, the confines of the Immigration Nationality Act, uh, under the two sections that were the most under review here. And uh, I, I will tend to think of this, uh, not so much as a win for Trump—although, it is of course—um, but it's for a, a win for executive authority in, in a case where they could have really gone south and done some damage, uh, for, uh, for future executives.

 

Mr. Dean Reuter:                    Carl Esbeck, final thought?

 

Prof. Carl H. Esbeck:              Uh, well, I guess I'll point out two things so they somewhat, uh, uh come together. One is, uh, the Court majority today, um -- you know, conservatives may celebrate this case, liberals, uh, are unhappy. Uh, but conservatives by and large are supportive of religious liberty, but today was in one respect a loss for religious liberty because in this particular context, uh, religious liberty got downgraded to rational-basis review. Not just religious liberty, but, uh, freedom of speech and due process and equal protection and so on. So you now have to show -- well, you now have to animus or at least something equally irrational, whatever that is, uh, short of animus or malice. So, so, you know, it's, uh, for civil libertarians they -- the more they think about this case, they may, may see this is as, uh, as not, not a victory.

 

                                                On the oth-, -- and the other thing I want to say, which sort of collapses into the first point. Uh, a lot more pressure's going to be put on the Religious Freedom Restoration Act, which is untouched by footnote five.

 

Mr. Dean Reuter:                    Very good. Well, gentlemen, uh, I want to thank you, uh, for your time today, especially on short notice, uh, taking, uh, not just the time for this call, but the time to review these opinions as lengthy as they were. Uh, I want to thank the audience as well for dialing in and for your thoughtful questions. A reminder to the audience to check The Federalist Society's website. Monitor your emails for news of upcoming teleforum conference calls. We have at least one scheduled for tomorrow, but until the next call, we are adjourned. Thank you very much everyone.

 

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