Amicus Brief in Trump v. IRAP, No. 16-1436

SUPREME COURT DISPOSITION: On June 26, 2018, the Supreme Court of the United States reversed the lower court decisions enjoining the “travel ban” and sent the cases back to the lower courts. The majority opinion, written by Chief Justice John Roberts, said, in part:

At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. …

Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. …

Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. …

For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. …

The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable
by anything but animus.” Indeed, the dissent can only attempt to argue otherwise by refusing to apply anything resembling rational basis review. But because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification. …

Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.

Trump v. Hawaii, No. 17-965 (June 26, 2018). In other words, the Court refused to look at the campaign statements so long as the face of the Proclamation was itself neutral, and there was a sufficient governmentally-important basis for issuing the Proclamation independent of any unconstitutional bias. The test is whether “it is impossible to ‘discern a relationship to legitimate state interests’ or that the policy is ‘inexplicable by anything but animus.’” In the “travel ban” case, there was sufficient national security interest to justify the ban on admissions from certain countries with demonstrated security concerns even in the face of Presidential statements that might implicate religious bias.

FOURTH CIRCUIT ON REMAND DOES NOT CONSIDER CAMPAIGN SPEECH: On remand, the Fourth Circuit Court of Appeals issued a new injunction against the “travel ban” but said that it did not need to look at campaign speech and did not do so on remand. For a deeper look indicating that the Fourth Circuit indirectly did consider campaign statements, however, see this post.

FURTHER UPDATE: Oct. 10, 2017. In a one-page Order, the Supreme Court vacated the Fourth Circuit’s opinion in this case, and sent the case back to the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order 13,780. The entire text of the Order reads:

     We granted certiorari in this case to resolve a challenge to “the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

In competing letter briefs filed last week, the parties argued over whether the case was moot. The Federal Department of Justice argued that the bans have expired, mooting the case, so the Fourth Circuit’s decision should be vacated. In response, the challengers argued that part of the ban continued so the case should not be mooted, and, in any case, the Court never should have granted certiorari, and so should have dismissed the writ of certiorari as “improvidently granted.” Justice Sotomayor agreed with the challengers, but the rest of the Court did not.

The Supreme Court’s near-unanimous decision ends this portion of the case. Another challenge to the “travel ban” includes a ban on certain refugee admissions, and has not yet been vacated. Some observers predict that as soon as that ban expires, on October 24, the challenge to it will similarly be vacated as moot.

UPDATE: Aug. 3, 2017: PPLI, along with the Center for Competitive Politics, filed another amicus curiae (friend of the court) brief asking the U.S. Supreme Court to speak out strongly against the decision of the U.S. Court of Appeals for the Fourth Circuit in No. 16-1436, Trump v. International Refugee Assistance Project. This case, popularly known as the “travel ban” case, is an Establishment Clause challenge to President Trump’s Executive Order 13,780 temporarily halting non-immigrant admissions to the United States. PPLI and CCP filed a brief to show the Court that there was a hidden, but very important, First Amendment speech issue in the case: whether the Fourth Circuit’s proposal to “chill” certain candidates’ speech as part of an Establishment Clause review was constitutional under the free speech protections of the First Amendment.

Here is the CCP press release announcing the filing.

 

UPDATE: June 26, 2017: the Supreme Court of the United States decided to accept this case for full review, and granted the Petition for Certiorari. The Court consolidated this case (No. 16-1436) with another “travel ban” case from Hawaii, (Trump v. Hawaii, No. 16-1540). Oral argument is scheduled for October 10, 2017.

June 9, 2017: PPLI (along with Center for Competitive Politics) filed an amicus curiae brief  in the Supreme Court of the United States supporting a request that the Court review (grant certiorari) the decision of the U.S. Court of Appeals for the Fourth Circuit in No. 16-1436, Trump v. International Refugee Assistance Project. This case, popularly known as the “travel ban” case, is an Establishment Clause challenge to President Trump’s Executive Order 13,780 temporarily halting non-immigrant admissions to the United States. PPLI and CCP filed a brief to show the Court that there was a hidden, but very important, First Amendment speech issue in the case: whether the Fourth Circuit’s proposal to “chill” certain candidates’ speech as part of an Establishment Clause review was constitutional under the free speech protections of the First Amendment.

Here is the CCP Press Release.

Excerpts from the Brief: 

    Amici [Public Policy Legal Institute and Center for Competitive Politics] take no position on the propriety of the underlying immigration order in this case, nor on the Establishment Clause questions addressed below. They write separately to address a portion of the Fourth Circuit’s opinion, discussed at pages 28-30 of the Petition, that creates a new and unprecedented danger by welcoming the chilling of “campaign promises to condemn and exclude entire religious groups.” This new “welcome restraint” doctrine – which could be used by other courts to probe candidates’ campaign speech and associations, including speech bearing little resemblance to the utterances at issue here – offers significant dangers to free speech and association.

PRELIMINARY STATEMENT

     “To the extent that our review chills campaign promises to condemn and exclude
entire religious groups, we think that a welcome restraint.”
Int’l Refugee Assistance Project, et al. v. Trump, et al., No. 17-1351 (4th Cir. May 31, 2017), slip op. 68, Pet. App. A, 62a (emphasis added).

     The parties have not focused on the Fourth Circuit’s new assertion that the chilling of certain disfavored speech would be a “welcome restraint.” Pet. App. 62a. The “restraint” the majority below would “welcome” is self-censorship.

     Although this case concerns an Establishment Clause dispute, the Fourth Circuit majority quotation above poses important questions concerning free speech, content and speakers. Yet, rather than maintain the courts’ traditional respect for vigorous campaign speech, the lower court here “welcome[d] restraint” on “campaign promises” of a
particular type and by a particular speaker. Pet. App. 62a.

Whether or not the majority below thought their “welcome restraint” analysis was mere dicta, this Court has never held or suggested that the Establishment Clause can restrain campaign speech. Nor can the “welcome restraint” formulation be limited, as the majority below suggests, to only “highly unique” situations. Once confirmed (or left
unrestrained by this Court’s review) the number of applications of “welcome restraint” analysis of campaign speech on religious or other grounds will likely multiply.

ARGUMENT

     This case comes to this Court as an Establishment Clause challenge to an Executive Order. But in reviewing that challenge, the Fourth Circuit relied heavily upon its parsing of campaign speech, and suggested that any chill resulting from that approach would be a ”welcome restraint” on certain messages. That position conflicts with settled law protecting a variety of speech and speakers, was not necessary to the resolution of this case, and is applicable to many more situations than the Fourth Circuit’s “highly-unique” prediction would suggest.

To read the full brief, click here: 16-1436 Public Policy Legal Institute tsac