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Trump Travel Order case may not be over, despite Supreme Court ruling

Trump Travel Order case may not be over, despite Supreme Court ruling

After ruling in favor of Trump, SCOTUS remanded the travel order dispute to the lower courts. Here are some ways the litigation could continue.

Most people assume that when the Supreme Court decides a case, it’s over. Final. That’s usually how it is, but not always. Sometimes when Court issues an opinion, it also sends the matter back to the lower courts for further consideration in light of the new guidance.

For procedural reasons I’ll explain soon, this is the path the Court took two weeks ago when it upheld Travel Order No. 3 in a bitterly divided 5-to-4 vote. So that means the case of Trump v. Hawaii will be returning to the lower courts which, altogether, have struck down the order, in its various iterations, a total of not one, not two, not three, not four, but five times. 

So what happens on remand now that the Supreme Court has ruled? Is it done at long last?

I. A Plan to Keep the Case Going

In a recent Bloomberg column, prominent Harvard law professor Noah Feldman, relaying ideas from Yale’s Owen Fiss, offers a preview of how Hawaii’s lawyers will keep fighting the case.

Fiss and Feldman believe that Justice Kennedy hinted in his concurring opinion—like Fermat scribbling his elusive theorem in the margins of his notes—that there may still be substantive issues for the lower courts to explore. “On his way out the door, Justice Anthony Kennedy buried a nugget in his concurring opinion that allows the challengers to go back to the district court and demand a trial on whether President Donald Trump’s travel ban was motivated by anti-religious animus,” Feldman observes.

Upon first glance, his optimism may seem reminiscent of that whole “Here’s how Bernie can still win” meme from a while back. After all, it is hard to believe that Kennedy, despite retiring, or any of the justices for that matter, really want this case stalking their docket for the rest of Trump’s presidency. Yet Feldman does seem to be on to something. In a brief concurrence to Chief Justice John Roberts’ majority opinion, Kennedy does indeed ponder

Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs… And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive.

So Kennedy does seem to entertain the case continuing—which may be confusing. Didn’t the Supreme Court reject legal arguments against the travel ban? Yes but, as I hinted at earlier, there is a procedural subtlety: in upholding the travel ban, the Supreme Court merely reversed a preliminary injunction granted by a federal court in Hawaii and affirmed by the Ninth Circuit. (A few days later, the Court vacated a parallel injunction from a federal court in Maryland, within the Fourth Circuit.) The Court did not officially decide the merits of the case by awarding judgment to either Hawaii or President Trump. Instead, as is their common practice, the Justices directed the Ninth Circuit to handle all that on remand. So technically, neither side has won a formal, final victory. Of course, everyone expects that the lower courts will be forced to find in the Government’s favor now that the Supreme Court has substantively rejected all of Hawaii’s legal arguments.

II. Hawaii May Seek Intrusive Discovery 

Unless…Unless—Feldman and Fiss hope, Hawaii can somehow demand a trial, which might allow its lawyers to “seek discovery to uncover new evidence of Trump’s thinking, including, potentially, drafts of the executive order or memos about it.” “Who knows,” Feldman wonders, “what they might reveal.”

Hawaii’s lawyers will certainly seek discovery. They have nothing to lose by doing so. And if the fishing expedition Feldman proposes is allowed to happen, it is possible, he thinks, that the documents reeled in will prove unconstitutional intent.

There’s just one problem. Isn’t seeking “drafts of the executive order or memos about it” exactly what Kennedy cautioned against when he warned that “even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive”?  In what universe would compelling the President to divulge his staff’s private, incomplete thoughts about the security practices of foreign governments not “intrude on” his foreign affairs powers? Revealing the intermediate, unfinished assessments that were used to select the countries could cause the White House to face (even greater) embarrassment and contempt in foreign capitals and, worse still, undermine the strategic objectives that motivated the travel ban in the first place.

Of course, the challengers believe that Trump’s “strategic objectives” are so obviously a fig leaf that there’s no harm in subjecting the White House to a strip-search in order to expose the fraud. But this way of thinking is precisely why Kennedy included his admonition.

As Josh Blackman points out at Lawfare, last December Kennedy voted to block a California judge’s demand for thousands of documents concerning the termination of DACA. And, Blackman further observes, this intervention was in the context of a domestic policy, a sphere in which the president is owed far less deference than in his conduct of foreign affairs. One would think that, in light of their DACA intercession and votes to uphold the travel ban, it would be clear that Kennedy and the other conservatives intend for President Trump to be treated as President instead of as Trump.

III. The Waiver Provisions

A possible exception to executive privilege might be documentation on how the administration is implementing the travel ban’s waiver provisions.

As Blackman notes, lower courts may demand the “production of official documents concerning the waiver process.” Indeed, in his dissent Justice Breyer invited discovery on this very question, which was central to his gentle approach to the entire case. Employing his usual savoir faire, Breyer reasoned that if the travel ban were truly premised on national security, and not prejudice, then the Government would not be miserly in granting waivers to people who have passed the required vetting. So he wants the lower courts to look into it. “Given… the assistance in deciding the issue that answers to the ‘exemption and waiver’ questions may provide, I would send this case back to the District Court for further proceedings.” Evidently then, Breyer doesn’t think discovery on this matter would be unduly intrusive, perhaps because the administration’s waiver procedures are not entangled with its posture toward other countries. 

IV. Lower Standard of Evidence? 

Feldman and Fiss make another point: that even without fruitful discovery the lower courts could still rule for Hawaii because the “standard of proof of bias that the plaintiffs would have to meet could actually be lower at trial than in their action seeking a preliminary injunction.” That seems like a subtle legal question that will need to be expounded upon by experts when and if Hawaii actually gets that far. At least initially, I think that Feldman is, once again, succumbing to wishful thinking. (Though it is the Ninth and Fourth Circuits we’re talking about.) 

The Supreme Court held that the President possesses the statutory authority to impose the travel ban’s entry restrictions. That is an abstract conclusion of law unrelated to the allegations of religious bias, so there is nothing more to litigate there. 

As for the Establishment Clause claim, which obviously is intensely fact-dependent, the Supreme Court decided that, even with all the evidence of animus, the travel ban could “reasonably be understood to result from a justification independent of unconstitutional grounds.” Given how how clear Roberts was, it’s hard to see how, absent bombshell new evidence, lower courts could rule against the Government without, out of logical necessity, reaching conclusions contrary to the Supreme Court’s. 

But then again, the Ninth Circuit doesn’t lose too much sleep over being reversed by the five conservatives. So I’ll end with two bold predictions about what’s to come. First, within the next six months, district judges will try to force the administration to grant more waivers. Second, the Supreme Court— assuming it has nine justices—will not permit the Plaintiffs to invade the White House’s privacy in a desperate effort to revive this case. 

V. Conclusion – Try, try again?

Ultimately, Trump will win. The Supreme Court will again get involved if it has to. But it’s not over until it’s over, and it’s not over just yet.


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rabid wombat | July 8, 2018 at 7:05 pm

If it is the President’s prerogative, it is over. His reasoning does not matter. Likewise, it will be very difficult to prove an “anti-Muslim” bias, as many “Muslim” countries are not part of the “ban”. Just drive a stake in it – it is done.

All that said, I fully expect the various clowns within the 4th and 9th areas to rule again – to be spanked down again.

    Tom Servo in reply to rabid wombat. | July 9, 2018 at 8:42 am

    The great irony is that the longer this plays out, the greater the benefit to Trump, politically. He’s already won in the eyes of the public, and further attempts to block this are going to clearly be seen as judicial obstructionism – giving force to his calls to keep the Senate Republican and to continue appointing originalist judges.

    So the left has the choice of giving in and accepting he’s won; or to keep fighting, and the watch him win even more bigly.

Unpronounceable | July 8, 2018 at 7:07 pm

There are only about 1.25 million permanent residents in the state of Hawaii, less than many cities/urban areas on the mainland. The economy in Hawaii is based entirely on tourism. The state of Hawaii will give a voter registration card to anybody (no ID required) but requires a certified copy of your birth certificate and 2 pieces of mail from a government agency or local utility (to prove residence in the state) to get a drivers license. A large number of native Hawaiians claim that Hawaii is not really a part of the United States, yet their politicians think they can “Wag the dog”. It’s time to make these people pay for their political nonsense. BOYCOTT HAWAII. Don’t go there on vacation (or for any other reason). Tell your friends and family not to go there or do business with anybody there. Tell everyone, BOYCOTT HAWAII.

    My part 1 of a solution is to send problematic “refugees” to those places where the judges live. Congresscritters tend to live somewhere other than their address-of-record so placing them there is not exposing them to anything. Placing them (by way of mandatory section 8 developments in the immediate area of obstructionist judges) in a place where the judges, families of judges, and neighbors of judges have to encounter the terrorist trained Islamic Supremacists…..

    That is a needed starting point.

I have absolutely no doubt the process will continue as follows:
1) The Trump administration will implement the travel restrictions as written
2) The Hawaii court will remain silent for a time, then spring another injunction at the worst possible time, using totally false and misleading ‘facts’ to back it up.
3) The SCOTUS will smack ’em again.

Lather, rinse, repeat.

    PersonofInterests in reply to georgfelis. | July 9, 2018 at 10:59 am

    And what you describe forms the basis that these Activist Judges and Activist Courts must be reformed or else, the judges MUST ABSOLUTELY BE HELD ACCOUNTABLE BY THE PEOPLE VIA AN ELECTION. If they want to behave as Legislatures and President, then they ABSOLUTELY MUST BE SUBJECT THE WILL OF THE PEOPLE…….OR IMPEACHED AND REMOVED FROM THE BENCH.

    Moreover and since an Activist Judge in Hawaii may obviously impact people living outside of Hawii, it is fair and necessary that the election to retain them on the bench be subject to a National Election Vote.

      Nice theory. Lousy practice.

      The Kansas Supreme Court has retention elections, and has produced some of the dumbest fiscal judgments against the state, so during the last election, several groups decided it was time for this red state to vote out the bluest justices.

      And we *still* didn’t. I don’t think we’ve ever voted a SC justice off the court. Ever.

Close The Fed | July 8, 2018 at 7:33 pm

I haven’t read the opinions/orders. That said, SCOTUS should have laid out a clear and definite order to bring the matter to a close. Remanding without such a definite order, permitting the executive to continue to be harassed by these lower courts, costs a lot of tax money and a lot of time.

Kennedy, et al., should close off avenues for lower courts to continue their mischief and certainly not invite them to it.

Perhaps if Kennedy had to foot the executive’s legal fees in this fiasco, he would be more prudent.

    As noted, the case was not procedurally postured to give a full, final legal decision. Technically the only thing before the Court was the Injunction by the Hawaii Judge and the upholding of that injunction by the 9th Circus. SCOTUS blew the injunction out of the water.

    That being said, the SCOTUS decision was about as clear as they could make it that the Courts should find in the United States Government favor, because the challengers were unlikely to succeed at final trial on the merits.

Close The Fed | July 8, 2018 at 7:34 pm

Also, why are the judges who pulled these stunts not being impeached?

If they want to be potus, let them quit their day job and run for president. It’s only 2.5 years off.

    Milhouse in reply to Close The Fed. | July 9, 2018 at 1:40 am

    Because it’s not done to impeach judges for what they do on the bench. Judicial independence is a bedrock principle of our republic, and threatening it is not a trivial matter.

      Bisley in reply to Milhouse. | July 9, 2018 at 5:54 pm

      Because it hasn’t been done, doesn’t mean that it shouldn’t be. Judicial independence should not be construed to include judges ruling according to their personal and political preferences, rather than the law. When the courts become politicized, it destroys all expectation of just decisions coming from them, and general respect for the law.

      Impeachment is far too political and cumbersome a process — there needs to be some more practical way of purging the courts of incompetents and political hacks. Scalia once said something to the effect that it wouldn’t matter who was appointed to the courts if they were competent lawyers and followed the plain meaning of the laws and the Constitution — unfortunately, that is not the case, and there needs to be some form of discipline to make judges do a proper job, or remove them.

The above article helps explain why a) the district court system needs to be tightly reined in or even abolished and b) the 9th Circuit, in particular, needs to be split up into two or even three smaller jurisdictions.


Q: What’s the difference between a Democrat district court judge and God?

A: God is much more humble and He knows the limitation of His powers.

Even if Trump outright said he’s not letting any Muslims into the country, where’s the beef? If foreigners who reside outside the country and are not legal residents of the US are not obligated to follow US law why should they be able to avail themselves of the protections of US law?

    Milhouse in reply to randian. | July 9, 2018 at 1:49 am

    This. The excuse is that it’s not their rights that are being asserted, but those of the US people who would like to have the benefit of their presence here.

    But another and more important claim, which I think is not getting the scrutiny it deserves, is that independent of anybody’s rights, a ban motivated by anti-Moslem animus would violate the establishment clause. Everyone, even the administration and the SCOTUS majority, seems to take that for granted, and only differ about how to determine whether that is real motive.

    But I don’t see it. It seems to me that even if the president were to explicitly denounce Islam and ban the entry of all non-resident alien Moslems there could be no constitutional objection. (There may be a statutory objection, but that’s debatable.) And the same would be true were an antisemitic or anti-Catholic president to ban the entry of non-resident alien Jews or Catholics or whatever. I just don’t see how that can be spun into an establishment of religion, and non-resident aliens have no enforceable right to be admitted to the US. The only recourses I can see would be impeachment (if Congress disagrees strongly enough) or failure to reelect him next time (if the public disagrees strongly enough).

Any justification for a travel ban is officially an invitation for litigation.
So, issue it and let it stand.
That seems to be the lesson learned.