How did the lower courts and Supreme Court differ so much on Trump travel ban?

This week, in Trump v. International Refugee Assistance Project, the Supreme Court granted certiorari to review rulings by two federal courts of appeals — the Fourth Circuit and the Ninth Circuit — that entered preliminary injunctions against implementation of President Trump’s temporary travel ban executive order.

At the same time, the Court stayed portions of the lower courts’ preliminary injunctions, thus allowing substantial swaths of the temporary travel ban to go into effect. The cases may not ultimately result in a complete victory for the Trump administration (insofar as the Court has yet to rule on the merits, and issues of potential mootness loom over the case).

Still, the Court’s ruling makes clear that, in enjoining the temporary travel ban, the lower courts erred in two key respects.

First, the lower courts gave insufficient weight to the executive branch’s interest in, and discretion in determining the means to obtain, national security.

{mosads}Second, the lower courts deferred too much to the plaintiffs’ assertions that the temporary travel ban imposes cognizable legal injuries on foreign nationals with no connection whatsoever to American citizens or institutions.

Consider first national security.

The Court has emphasized repeatedly the wide berth the executive branch enjoys in order to maintain national security. And this case was no exception, with the Court’s per curiam opinion highlighting “the Government’s compelling need to provide for the Nation’s security” (language quoted by Justice Clarence Thomas’s opinion for three Justices concurring in part and dissenting in part).

As the Court noted (quoting language from an earlier case), “The interest in preserving national security is ‘an urgent objective of the highest order.’”

Contrast this language with the language of the lower courts. The Fourth Circuit’s majority opinion opens with a description of the temporary travel ban as having been enacted by “an executive order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

Far from deferring to the executive branch’s strong interest in seeking, and determining how to seek, national security, both the Fourth and Ninth Circuit opinions critiqued the government’s national security arguments, ultimately drawing their own conclusion that the temporary travel ban was not likely to further national security.

Consider next the fact that the Supreme Court allowed the temporary travel ban to go into effect as to foreign nationals with no connection to the United States. Quoting an earlier case, the Court noted that “‘[A]n unadmitted and nonresident . . . ha[s] no constitutional right of entry to this country.’”

Further, the Court explained succinctly that the government’s interest in exercising, and the executive branch’s authority to exercise, authority to stem immigration the executive order are “undoubtedly at their peak when there is no tie between the foreign national and the United States.”

Yet both the Fourth Circuit (on constitutional grounds) and Ninth Circuit (on statutory grounds) upheld blanket, nationwide preliminary injunctions against the temporary travel ban (other than restricting the injunctions against President Trump himself on technical sovereign immunity grounds).

The Court faulted the lower courts’ legal reasoning in this regard. The Court noted that “the courts below did not conclude that exclusion [under the temporary travel ban] would impose any legally relevant hardship on [such a] foreign national himself.”

The Court concluded that, “whatever burdens may result from enforcement of [the temporary travel ban] against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below.”

In short, while the lower courts undertook searching inquiries in an effort to discredit the executive branch’s claimed justification of national security, they failed to undertake searching inquiries into the legally relevant harms suffered by foreign nationals with no U.S. connection, instead deferring to the plaintiffs’ assertions along these lines.

It is even more remarkable that the Supreme Court was unanimous — across appointees of Presidents of both parties — in disagreeing with the lower courts on these points.

Despite their lopsided nature, the votes of the courts were highly (and arguably entirely) correlated with the party of the President who appointed the judges. All judges appointed by Democratic presidents on the Fourth Circuit voted against the temporary travel ban. Only one judge appointed by a Republican president on the Fourth Circuit voted with the majority (and indeed authored the majority opinion), but that judge was originally nominated by President Bill Clinton but not confirmed by the Senate (and then received a recess appointment from President Clinton); President George W. Bush renominated him in an effort at reconciliation when he took office.

And the three judges who formed the Ninth Circuit panel issuing the preliminary injunction against the temporary travel were all appointed by Clinton.

In contrast, the Supreme Court majority traversed ideological lines, and included all four Democratic appointees. It is clear, moreover, that the three Republican–appointed justices who joined an opinion concurring in part and dissenting in part agreed with the majority on the shortcomings of the lower court opinions.

Writing for himself and justices Samuel Alito and Neil Gorsuch, Thomas agreed with the majority’s decision to stay the preliminary injunctions below, but would have stayed those injunctions entirely.

In other words, Thomas would have allowed, pending appeal, for the temporary travel ban to go into full effect.

Clearly, then these three justices agreed — along with their fellow Republican-appointed Justices and all the Democratic-appointed justices — that the lower courts had undervalued the executive branch’s discretion to achieve national security and over-valued the rights of foreign nationals with no connection to the United States.

Jonathan Nash is the Robert Howell Hall professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law.  Follow him on twitter at @JonathanRNash. 

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