Playing Fast and Loose with Assertions of National Security

February 15, 2017
Guest Post

by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago Kent College of Law

There have now been approximately 25 cases filed around the country challenging President Trump’s executive order (“EO”) imposing a travel ban on refugees and on individuals from seven majority-Muslim countries, and TROs of various scopes have issued. (The University of Michigan Civil Rights Litigation Clearinghouse is gathering filings in these cases.) Most famous, of course, is the nationwide TRO issued by the district court in Seattle in Washington v. Trump, the case brought by Washington and Minnesota, and the refusal of the Ninth Circuit – which treated the TRO as a preliminary injunction – to stay that order pending appeal. (The Ninth Circuit, at the request of at least one active judge, is now considering whether to rehear that decision en banc.) But other cases continue apace. Just yesterday, in a case called Aziz v. Trump, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction precluding enforcement of the portion of the Executive Order prohibiting entry into the United States by people from seven specific majority-Muslim countries. (This injunction applies only to Virginia residents as well as to students and employees of Virginia educational institutions.)

The Trump Administration’s litigation strategy in these cases reveals, if there were any doubt, that no evidence of any security risk prompted the EO and that it engaged in no internal process to evaluate such a risk. Its primary argument on the merits is that the courts can have no role in reviewing the president’s immigration decisions, particularly when they implicate national security. The courts in the travel ban cases have resoundingly rejected this argument, even as they have acknowledged that the president is entitled to substantial deference. The Ninth Circuit spent more than four pages of its opinion and cited reams of Supreme Court opinions explaining the role of the courts in reviewing immigration and national security related decisions of the political branches. And as Judge Brinkema said in her opinion, “Maximum power is not absolute power.”

Assertions of executive authority are not surprising, of course. But it is more surprising that the Administration has presented zero evidence in any of these courtrooms to support its claims of necessity, or even to demonstrate that national security officials provided information or engaged in analysis on which the president relied before the EO issued. And the courts have noticed. Judge Brinkema was particularly critical of the Administration’s evidentiary failures. On Friday, she told the Administration’s attorneys that “the courts have been begging you to provide some evidence, and none has been forthcoming.”

Even more telling than its failure to produce such evidence so far, the Administration is actively avoiding proceedings that would call for its production. On Monday, the Administration asked the Washington district court to hold off on further proceedings in the district court while the Ninth Circuit considers whether to rehear the stay motion en banc. Judge Robart, the district court judge, after noting the President’s tweet – “SEE YOU IN COURT” – in response to the Ninth Circuit’s decision, expressed surprise and rejected the request for delay. (At the same time, Judge Robart granted the States’ request for expedited discovery.)

Moreover, the Administration’s own conduct belies any belief in an actual security risk. Notably, as Neal Katyal, former acting solicitor general under President Obama, explained, if there were any meaningful risk, there would have been no question about whether to go to the Supreme Court after the Ninth Circuit ruled. The Administration would have appealed to that Court as soon as humanly possible. Likewise, it would be pushing Judge Robart to move proceedings in his courtroom along as quickly as possible. It might have asked the Ninth Circuit for an even more abbreviated briefing schedule for the full PI appeal – briefing is currently scheduled to take about six weeks. Or it might have rushed to issue a new EO that addressed at least some of the constitutional concerns about the original one. But the Administration has done none of these things. Instead, having lost its argument that the president’s decisions in this arena are entirely unreviewable, the Administration apparently is in no hurry to say anything else.

Finally, in both cases, the plaintiffs have filed a declaration from a bipartisan group of former intelligence and national security officials, several of whom were in office until Jan. 20 of this year. These former officials state that they know of no threats or information that would warrant the action taken in the EO and that, in fact, the travel restrictions harm our national security. Judge Brinkema specifically noted this declaration, criticizing the Administration for not presenting even “a scintilla of evidence” to rebut it. Indeed, the Administration’s only justification for the seven countries singled out for the ban is that they were countries that the Obama administration had identified as being of “special concern.” While true, the Obama administration’s determination in response to that concern (a modest limitation of the visa waiver program for people who had traveled to those countries) in no way suggested that there was a danger that would warrant a complete ban. Here, a declaration from current national security officials explaining that they had reviewed the available information and intelligence about those seven countries before the EO was issued – even without revealing what that information and intelligence is – would significantly bolster the Administration’s case. But no such declaration has been filed.

This fundamental lack of evidence, including evidence of a meaningful process for reviewing and analyzing information, is what may ultimately doom the Administration’s case. There can be no deference to an executive determination when no actual determination has been made. In email correspondence, Walter Dellinger has suggested this failure of any process renders the EO so arbitrary that it fails due process. An emphasis on process in these first travel ban cases thus may be particularly crucial, not only because it is a basis for undermining the EO, but because it is a legal theory that could apply in other contexts as well. (It also provides a limiting principle for those who worry about judicial second-guessing of national security decisions.) But over time Trump and his close advisors may become more adept at generating the appearance of process where there is none. Those of us outside government will need to be as vigilant about how decisions are made as we are about their content.