Originally published by Politico
In the months since June 2018, when the Supreme Court upheld the third version of President Donald Trump’s controversial travel ban, the matter has largely slipped from the headlines as the president’s political adversaries have turned their attention to other issues. But the ban—which, even in its revised form almost completely blocks travelers from seven potentially dangerous countries, five of them with Muslim-majority populations—remains a rare and blunt-force instrument in American immigration policy.
It’s the law of the land. But even with the Supreme Court’s imprimatur, it may not be as bulletproof as the White House assumes.
At the time of the high court’s ruling, the key question was whether the policy was constitutional as written. But now, more than two years since Trump first issued the ban, the question isn’t simply whether the travel ban is up to snuff; it’s whether evidence demonstrates the law is equitable in practice—and whether its real-world enforcement is as fair as the administration promised the justices.
There are plenty of reasons to believe it is not.
The original version of the policy, whichbarred the citizens of seven Muslim-majority countries from entering the United States and included green card holders from those nations, was immediately enjoined by federal judges for either violating due process rights or expressing religious animus. By the time the Supreme Court addressed the policy, the administration had revised it twice, cutting three Muslim-majority countries from the list while adding two non-Muslim countries, North Korea and Venezuela. Five members of the court, led by Chief Justice John Roberts, signed off on this third version of the ban in part because it contained awaiver program allowing individuals from those nationsto obtain a visa if they met certain standards.
Just because the waiver program exists on paper, however, doesn’t mean it satisfies constitutional requirements.And just because the ban is, in the court’s phrase, “facially neutral” on the issue of religion, doesn’t mean it’s neutral in practice.
New lawsuits challenging the ban bring into play court precedents that were not raised in the initial travel ban lawsuits—cases involving laws that were facially neutral but discriminatory in practice, and which were struck down on that basis.
In one landmark 19th-century case, Yick Wo v. Hopkins, the city of San Francisco used a seemingly “neutral”policy to oppress a group of migrants—in that case, people of Chinese ancestry. The city’s law, a complex ordinance for regulating laundries, required anyone who wished to operate a laundry in a wooden building to seek a permit. As innocuous as that sounded, the Supreme Court ultimately found that the city’s actual enforcement pattern showed that the wood buildings were being used as a proxy for race. In a unanimous opinion by Justice Stanley Matthews, the court ruled that “whatever the intent of the ordinances as adopted,” they had been enforced “with a mind so unequal and oppressive as to amount to a practical denial by the state” of equal protection of the laws. The justices inferred discrimination from the pattern of enforcement: Every Chinese applicant had been denied a permit, while all but one white applicant received one. Moreover, the court deemed it irrelevant that the Chinese men were foreign nationals; the 14th Amendment guarantees due process and equal protection of the laws to all “persons,” and these protections were treated as “the blessings of civilization,” the judges ruled.
All of these principles are now well established in American law, and they have a clear bearing on the travel ban.
Indeed,Justice Anthony Kennedy, who provided the decisive fifth vote in the decision upholding Trump’s travel ban, authored a separate concurrence specifically to highlight the point that the policy was valid only if it wasn’t a vehicle forreligious bigotry. “The First Amendment … promises the free exercise of religion,” Kennedy wrote. “It is an urgent necessity that officials adhere to these constitutional guarantees … even in the sphere of foreign affairs,” he said, contemplating the possibility that “further proceedings” might illuminate the issue further.
As more information about the ban’s real-world enforcement emerges—and as immigrants’ rights activists mount fresh challenges to the law—it looks more likely that those “further proceedings” will start to chip away at the policy’s defenses.
The process could take years, with cases working their way through lower courts before arriving at the Supreme Court again.And it’s always possible that any legal proceedings will be overtaken by political developments—such as the election of a new president who opts to rescind the policy. But the outlines of a new strategy for overturning the travel ban is coming into focus.
When the Supreme Court upheld the travel ban by a 5-4 vote in Trump v. Hawaii, Roberts’ opinion found that the policy fell within the president’s broad authority to prevent certain people from entering the country for national security reasons. And because the newly revised list of barred countries included two non-Muslim nations, North Korea and Venezuela, and had dropped three Muslim-majority countries,the justices rejected the argument that the policy was religiously biased.
Though the court closed the door on the argument that the travel ban was unconstitutional as written, a careful reading of that decision shows that by emphasizing the procedural safeguards written into the law, the justices deliberately left open the possibility of other challenges to the ban.
These new legal claims fall into two main categories. One is based on religious bias: If the administration denies waivers at such a high rate that its policyis tantamount to a religious ban in practice, then it could still run afoul of the First and 14th Amendments’ guarantees of equal treatment for people of all faiths.The other is based on fairness:Even if the waiver program isn’t being implemented in a fashion that discriminates on the basis of religion, it’s possiblethe program still lacks sufficient procedural safeguards required by federal statutes or the Constitution’s due process clause.
The religious equality argument ensures that government officials can’t just hide behind a neutral policy while carrying out a nefarious plan to disadvantage Muslim people for who they are—what Justice Kennedy called “animosity to a religion.” The fairness argument promotes a related set of norms also essential to American civic values: thepredictable and fair administration of a policy, based on criteria that make sense.
During oral arguments, Solicitor General Noel Francisco pointed to the policy’swaiver systemand pleaded for the justices to afford the president’s policy a presumption of “regularity and good faith.” Asked by Justice Sonia Sotomayor to “represent to us that it is, in fact, a real waiver process,” he said that “consular officers automatically apply the waiver process,” but acknowledged, “I haven’t looked at every single case” of waiver denials. This exchange is important because it suggests that the justices tried to get more information about how the ban was being implemented, but at the time,there were just too many factual questions and not enough answers.
Justice Stephen Breyer’s dissent, joined by Justice Elena Kagan, lays out the road map for what challengers would need to prove if they want to show that the waiver program is a sham. “If the Government is not applying the system of exemptions and waivers … then its argument for the Proclamation’s lawfulness becomes significantly weaker,” Breyer wrote. “[D]enying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion.”
At the time, Breyer pointed out that out of more than 8,400 applications in the first four months of the program, only 430 waivers had been approved. There was also a hint in the original lawsuit that consular officers might have very little discretion to issue waivers, despite what the policy said, but the majority of justices brushed aside these filings as “anecdotal evidence” not yet tested through a full trial or an equivalent process.
Today, however, we have more answers. During the first full year of the waiver program’s existence, 98 percent of waiver applications were denied. Then, just last month, the State Department finally released a report that showed 2,673 waivers were granted in fiscal year 2018, while 37,000 visas were refused—meaning a whopping 94 percent of waivers were still rejected during the longer time frame.
Another way to look at the numbers is comparatively across countries. When we do so, we see that for the five Muslim countries that stayed consistently on the travel ban list, the number of immigrant visas approved dropped precipitously: an 81 percent drop overall from fiscal year 2016 to FY2018, ranging from a 68 percent decline for Libyans to a 91 percent decline for Yemenis. Similarly, the number of non-immigrant temporary visas from those five countriesdeclined by 78 percent.
This exceedingly high rate of rejections alone is suspicious and warrants further investigation. Recent coveragealso suggests that any waivers granted might even be done in an arbitrary or ad hoc fashion, such as when negative publicity is brought to bear on a particular request, or someone rich or famous supports an applicant.
We need to know more—much more. We don’t have a lot of information about how many waivers have been sought or refused since last summer, which leaves a number of questions unanswered. Is the visa rejection rate still that high, or has it dropped? And if the pattern of rejections remains strong, is it due to reasonable evaluation of individual circumstances, or is it instead a product of a wink-and-nod practice of saying no to nearly every Muslim applicant?
In the absence of legal process or congressional oversight, the Trump administration has refused to volunteer that data every step of the way. But thanks to new legal challenges, we may soon find out.
Two lawsuits in federal courts—one in California and another in Maryland—are demanding answers to such questions, seeking records that would allow us to glean how waiver decisions are being made on the ground.
In the California lawsuit, the plaintiffs have arguedthat some consular forms for waivers were pre-marked as “denied”—which, if true, would suggest that the waiver process is a sham. The Maryland lawsuit raises similar claims. Either lawsuit could wind up uncovering documents or securing sworn testimony that could help get at the truth of how the travel ban actually operates.
So far, both lawsuits appear to be moving forward. In the California case, U.S. District Judge James Donato found on February 4 that the plaintiffs had alleged enough facts to suggest there is “a de facto policy of blanket denials has usurped individual waiver decisions.” Donato allowed an Administrative Procedures Act claim based on a failure to follow agency protocol to proceed, but gave plaintiffs a chance to amend their complaint to satisfy his concerns about the constitutional equality and fairness claims. Likewise, in Maryland, U.S. District Judge Theodore Chuang expressed concerns about the government’s refusal to turn over relevant documents—and everyone is awaiting a decision that could unlock a trove of new information.
For this next round of legal challenges, the plaintiffs must prove a convincing pattern of misbehavior. Besides the paperwork generated during waiver requests, sworn testimony from consular employees and State Department officials will be essential, which can be obtained during depositions—or congressional hearings on the handling of waivers. There’s more that would have to be fleshed out regarding just how many travelers have applied for a waiver in recent months and why most people have been turned down for visas. If applicants are not given explanations, this would raise red flags and might be held against the government—just as it was when city officials in San Francisco failed to explain why all Chinese applicants were turned down for laundry permits.
We need to know what criteria, if any, bureaucrats are using to determine when an applicant is able to show an “undue hardship” or that admitting the person poses a threat to national security or public safety. It’s possible that we could discover that consular officials have been pressuredto automatically deny waiver requests; it’s also possible that, by contrast, most people who have applied have legitimately failed to meet the standards.
If there are no helpful guidelines, or if consular officials have been quietly instructed to say no, then the policy’s promise of fair and individualized consideration has been breached. If the challengers can tell a compelling story about continuing religious discrimination or arbitrary rejections of waiver applications, then they will be entitled to relief.
If the justices no longer have faith that the ban can be enforced fairly or without the stain of religious hostility, the ban will be struck down completely. But if a fair and equitable administration is still possible, then government officials could be forced to develop additional criteria and otherwise ensure evenhanded and transparent enforcement of the law.
After all the fact-finding, the fate of the travel ban will likely come down to an audience of one or two justices: Justice Brett Kavanaugh, who has since replaced Kennedy, and may feel bound to honor the position of his mentor, and Chief Justice Roberts, who defended the president’s prerogative the first time around, but has shown some inclination toward whatever outcome he thinks helps preserve the independent reputation of the judiciary.
A twist might be this: Twice in the last year, the Supreme Court has ruled against Muslims raising religion claims, once when the justices upheld the travel ban and just last month when they allowed Alabama to execute a Muslim man who pleaded for his imam to be present on his final day.
Will Roberts care about how members of a religious minority perceive the court’s public reputation? How the new arguments of bias and unfairness will fare in the Supreme Courtis anybody’s guess. But Kennedy’s final words on the matter of religious equality will no doubt linger: “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”