(Reuters) - The U.S. Supreme Court’s June 26 decision in Trump v. Hawaii (138 S.Ct. 2392) was a colossal win for President Trump and his Department of Justice. The five justices in the Supreme Court majority upheld President Trump’s modified ban on travel to the U.S. from six predominantly Muslim countries. Under the extremely deferential standard of review for presidential national security decisions, the court held, President Trump had ample justification for the travel ban.
The justices in the majority rejected Hawaii’s theory that the president’s own statements about banning Muslims showed the travel ban to be an unconstitutional violation of the Establishment Clause. “The issue before us is not whether to denounce the statements,” the court said. “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.” Under those parameters, the court said, the travel ban stands.
No doubt about it: Trump v. Hawaii was resounding vindication for the president - and for the Justice Department lawyers who represented him at the Supreme Court. But this week, two federal district court judges overseeing major litigation against the Trump Administration cautioned Justice Department lawyers against overreading the Supreme Court’s holding. In both cases, the judges rejected DOJ arguments that the Hawaii ruling restricts review of executive-branch policy decisions.
On the very day the Supreme Court issued its travel ban decision, the Justice Department cited the ruling in a brief arguing for the dismissal of a suit by Haitian, Honduran and Salvadorian plaintiffs challenging the Trump administration’s decision to revoke temporary protection that allowed them to resettle in the U.S. after emergencies in their countries. The plaintiffs alleged a violation of the Equal Protection Clause because the rescission seemed to target Latinos.
The Justice Department responded that under Trump v. Hawaii, the plaintiffs would have to show the administration’s policy had no rational basis, not just that it raises red flags of discriminatory intent under the Supreme Court’s 1977 test in Arlington Heights v. Metropolitan Housing Authority (97 S.Ct. 555). “There can be no doubt that substantial deference would apply to TPS determinations, to the extent judicial review is even available,” the DOJ brief said.
On Monday, U.S. District Judge Denise Casper of Boston said the Justice Department was wrong about that (2018 WL 3543535). In the Hawaii case, she said, the Supreme Court endorsed the president’s broad power to make national security decisions that affect the limited due process rights of foreign nationals seeking to enter the U.S. That’s not the scenario in the temporary protection case, she said, in which the plaintiffs are already well-established in the U.S. and national security is at best a background consideration.
“Hawaii established a narrower proposition than defendants contend, namely, that decisions by the government regarding admission of aliens, particularly in the context of the executive’s authority to make national security judgments, are subject to rational basis review,” Judge Casper wrote.
She found that under the Arlington Heights test, plaintiffs adequately alleged the Trump administration’s revocation of temporary protection was motivated by discrimination, based on “the combination of a disparate impact on particular racial groups, statements of animus by people plausibly alleged to be involved in the decision-making process and an allegedly unreasoned shift in policy.” (Judge Casper also said that even if she had used the rational basis test from the Hawaii case, plaintiffs’ constitutional claims would still have passed muster because the administration did not offer a good rationale for its policy change.)
U.S. District Judge Jesse Furman of Manhattan called the Justice Department’s invocation of the Hawaii case “somewhere between facile and frivolous” in a decision (2018 WL 3581350) Thursday that allows 18 state attorneys general and several advocacy groups to proceed with litigation to block the Trump administration from adding a question about citizenship to the 2020 census.
DOJ cited Trump v. Hawaii in a June 29 motion to dismiss claims by the advocacy groups, including an allegation that the citizenship question violates the Fifth Amendment’s Equal Protection clause. The government argued that the Supreme Court’s decision in the Hawaii case means the executive branch is entitled to broad discretion in its decisionmaking. “The Supreme Court reaffirmed that facially neutral policies are subject to only limited, deferential review and may not lightly be held unconstitutional,” the DOJ brief said. “Indeed, although the proclamation under review in Trump v. Hawaii concerned the admission of aliens from abroad and was thus reviewed at most for rational basis, the court recognized that deferential review may apply ‘across different contexts and constitutional claims.’”
Judge Furman said DOJ’s selective quotation from the Hawaii decision “conspicuously” omitted a key fact: “Every case cited by the court in which deferential review was applied involved either immigration or the admission of noncitizens,” he wrote. “There is nothing in the court’s opinion to indicate that its deferential review applies outside of the ‘national security and foreign affairs context,’ let alone that the court meant to unsettle decades of equal protection jurisprudence regarding the types of evidence a court may look to in determining a government actor’s intent.”
Even the Hawaii majority looked at the extrinsic evidence of President Trump’s statements, Judge Furman said. If anything, he concluded, the Hawaii case “cuts against defendants’ arguments rather than in their favor” in the census Equal Protection analysis.
These are early days for Trump v. Hawaii, of course. The decision is just a month old. And the Justice Department had almost no time in the temporary protection and census cases to digest the ruling before citing it in dismissal motions. DOJ may refine its interpretation of the Supreme Court’s holdings in future briefs.
But it’s worth remembering that even great victories can pale in exaggeration.
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