Gorsuch Leans
Far Right in Muslim Ban Case
Tuesday, June 27, 2017By Marjorie Cohn, Truthout |
News Analysis
Judge Neil
Gorsuch testifies during second day of his Supreme Court confirmation hearing
in the Hart Senate Office Building on Capitol Hill, March 21, 2017, in
Washington, DC. The justice who favored torture and warrantless surveillance is
also in favor of Trump's Muslim Ban. (Photo: Drew Angerer / Getty Images)
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The Supreme
Court has agreed to hear the first major test of the scope of executive power
to protect national security since Neil Gorsuch joined the Court as associate
justice.
Monday
morning, the high court announced it will determine the legality of Donald
Trump's executive order establishing a Muslim travel ban when it reconvenes the
first Monday in October.
In the
meantime, the high court allowed parts of the ban to go into effect. Trump can
now exclude foreign nationals who lack any bona fide relationship with a person
or entity, such as a school, in the United States.
The high
court's majority ruling was signed "per curiam" (by the court),
meaning that no justice took responsibility for writing it. Three justices --
Clarence Thomas, Samuel Alito and Neil Gorsuch -- dissented from the majority
ruling, saying they would have upheld the exclusion of everyone covered by
Trump's ban without limitation. Gorsuch's dissent, while perhaps not unexpected
coming from a person who obediently defended torture, warrantless surveillance
and runaway executive power under the Bush administration, portends a far-right
tilt for the court's newest justice.
Trump's
initial travel ban, issued by executive order on January 27, was subsequently
struck down by lower courts. On March 6, Trump issued a second, slightly
narrower executive order (EO). It said that nationals of six
predominantly-Muslim countries "present heightened risks to the security
of the United States" and some of those who have entered the US through
the immigration system "have proved to be threats to our national
security."
The EO
directed that the entry of nationals from the six countries be "suspended
for 90 days from the effective date" of the order, to give the
administration time to establish "adequate standards … to prevent
infiltration by foreign terrorists."
Two Appellate
Courts Had Halted the Travel Ban
Two federal
appellate courts stayed the implementation of the ban on travelers from the six
Muslim-majority countries -- Iran, Libya, Somalia, Sudan, Syria and Yemen --
but on different grounds.
In May, the
Fourth Circuit ruled in a 10 to 3 decision that the ban on nationals from these
countries violated the First Amendment's Establishment Clause because it was
motivated primarily by a desire to exclude Muslims from the United States, not
by considerations of national security. The appellate court wrote that the EO
"drips with religious intolerance, animus and discrimination," citing
Trump's campaign statements calling for a "Muslim ban."
Trump
"expressed anti-Muslim sentiment" during the presidential campaign,
Chief Judge Roger L. Gregory wrote for the majority. It is entirely plausible,
Gregory added, that the EO's "stated national security interest was
provided in bad faith, as a pretext for its religious purpose."
The Ninth
Circuit, on the other hand, didn't reach the constitutional issue. A unanimous
three-judge panel concluded earlier this month that the ban on nationals from
the six countries, the suspension of all refugee admissions for 120 days, and
the cap of 50,000 on refugees for 2017 exceeded the president's authority under
the Immigration and Nationality Act (INA).
As the panel
stated, "the [EO] does not provide a rationale explaining why permitting
entry of nationals from the six designated countries under current protocols
would be detrimental to the interests of the United States," which is what
the INA requires before the president can "suspend the entry of all aliens
or any class of aliens" to the US.
Moreover, the
panel wrote, the EO "does not tie these nationals in any way to terrorist
organizations within the six designated countries" or "identify these
nationals as contributors to active conflict or as those responsible for
insecure country conditions. It does not provide any link between an
individual's nationality and their propensity to commit terrorism or their
inherent dangerousness."
"National
security is not a 'talismanic incantation' that, once invoked, can support any
and all exercise of executive power," the panel added.
The EO also
runs afoul of an INA provision that prohibits discrimination in the issuance of
immigrant visas "because of the person's race, sex, nationality, place of
birth or place of residence," according to the panel.
The Supreme
Court's Ruling
In its 13-page
order on Monday, the Supreme Court stated, "An American individual or entity
that has a bona fide relationship with a particular person seeking to enter the
country as a refugee can legitimately claim concrete hardship if that person is
excluded." As to those individuals, the Court left the appellate courts'
injunctions against their exclusion in place.
Individuals with a
"bona fide relationship" include those who have a "close
familial relationship." Thus, "[a] foreign national who wishes to
enter the United States to live with or visit a family member" cannot be
excluded under the EO.
For entities,
"the relationship must be formal, documented, and formed in the ordinary
course, rather than for the purpose of evading the [EO]." Students from
the designated countries who have been admitted to a US university have such a
relationship. Workers who have accepted employment from a US company or a
lecturer invited to address a US audience are also covered.
The Court
directed the parties to address the issue of whether the challenges to the EO
became moot on June 14, 2017, the end date of the EO's 90-day suspension
period.
Thomas's
dissent, joined by Alito and Gorsuch, concluded that the Trump administration
"made a strong showing that it is likely to succeed on the merits"
and that "failure to stay the injunctions will cause irreparable harm by
interfering with 'its compelling need to provide for the Nation's
security.'"
The dissenters
feared "that the Court's remedy will prove unworkable" because
government officials will have to decide whether those who seek to enter the US
have sufficient connections to a person or entity in the US. "The
compromise also will invite a flood of litigation until this case is finally
resolved on the merits, as parties and courts struggle to determine what
exactly constitutes a 'bona fide relationship,' who precisely has a 'credible
claim' to that relationship, and whether the claimed relationship was formed
'simply to avoid'" the EO, Thomas wrote (quoting from the per curiam
order).
This is
precisely why the Court should've put a hold on the entire travel ban pending
its decision on the merits next term.
The Case Will
Test the Limits of Executive Power
This case sets
the stage for a major ruling on the scope and limits of presidential power in
the context of national security.
During the
Bush administration, the high court told the executive he could not deny
Guantánamo detainees their right to habeas corpus. But the Court held during
the Obama administration that people could be charged with providing material
support for terrorism even if one purpose of the charity to which they donated
supported humanitarian work.
Gorsuch's
joinder with Thomas and Alito in allowing Trump to fully implement his Muslim
ban portends the new justice's strong deference to the executive.
When he worked
in Bush's Justice Department, Gorsuch dutifully argued against Guantánamo
detainees who sought to bring habeas corpus petitions to challenge their
detention, opposed the Detainee Treatment Act's prohibition of cruel treatment,
argued that "enhanced interrogation" (a euphemism for torture) works
and defended Bush's warrantless surveillance program. At his confirmation
hearing, Gorsuch said he was just following orders.
This case will
reveal in more depth Gorsuch's willingness to unconditionally defer to the
executive.
In three months,
the justices will grapple with whether Trump's EO violates the First Amendment
and/or the INA. And since US district court judges in New York and
Massachusetts concluded it was likely that Trump's first EO violated
due process and equal protection, the Court may also decide whether the
second EO contravenes the Due Process and Equal Protection Clauses.
It is also
possible the Court will conclude the issue is moot, because the suspension on
entry of travelers from the six Muslim-majority countries expired on June 14,
2017, by its own terms. On June 14, however, Trump amended his March 6 order to
say that the ban would take effect after the lower court orders halting its
implementation were lifted. That would mean the issue is still alive. We will
see whether the Supreme Court decides the issue on its legal merits and defines
the scope of executive power in national security matters, or dismisses the
case as moot.
Meanwhile, we
would do well to note the significance of Gorsuch's affirmation of unbridled
executive power.
Copyright, Truthout. May not be
reprinted without permission.
Marjorie
Cohn is professor emerita at Thomas Jefferson School of Law, former president
of the National Lawyers Guild and deputy secretary general of the International
Association of Democratic Lawyers. Her books include The United States
and Torture: Interrogation, Incarceration, and Abuse; Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law and Drones
and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her
website: MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.
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