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On April 25, the Supreme Court will hear oral argument in Trump v. Hawaii, the latest iteration of Hawaii’s challenge to President Trump’s Executive Order suspending immigrant and nonimmigrant entry into the country by citizens of specific countries. While the original order banned entry of citizens from seven majority Muslim countries, it was superseded by the current order which affects citizens from other countries as well, such as Chad, North Korea and Venezuela. Ilya Somin and Josh Blackman will join us to preview the case.
- Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston
- Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
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Announcer: Welcome to the Federalist Society's Practice Group Podcast. The following podcast, hosted by the Federalist Society's International and National Security Law Practice Group was recorded on Monday, April 16, 2018, during a live teleforum conference call held exclusively for Federalist Society Members.
Dean Reuter: Welcome to the Practice Group's teleforum conference call as today we preview the Supreme Court's oral argument next week in Trump v. Hawaii. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at the Federalist Society. Please note that all expressions of opinions are those of the experts on today's call. Also, this call is being recorded for use as a podcast in the future, and will likely be transcribed.
We're very pleased to welcome two return guests today, and some special circumstances. We'll get opening remarks first from Professor Josh Blackman, he's the Associate Professor of Law at the South Texas College of Law in Houston. He is on a flight, or about to embark on a flight, so he's gonna be with us only for the first 10 minutes or so, in the event his flight is delayed, he'll hang in there. But, we will have him for 10 minutes, and with him probably some background noise as well, so a caution about that. He'll be followed in open remarks by Professor Ilya Somin, he's a Professor of Law at the Antonin Scalia Law School at George Mason University, right here in the Washington, DC area. Let's get right to it. Professor Blackman, the floor is yours.
Prof. Blackman: Thank you so much, Dean. I am currently speaking to you from a Jetway at Bush Intercontinental Airport. I had a flight delay, so I'm currently boarding. But, I'll speak until they throw me off. Next we the [inaudible 00:01:30] argument in the case of Hawaii v. Trump. This case considers the Constitutionality and the legality of President Trump's September 24, 2017 proclamation. Now, there have been several versions of this proclamation. The first version was instituted in January of 2017 and it banned aliens from several predominantly Muslim nations. It also suspended the Refugee Admissions program. That order was subsequently halted by the Courts. There was another order issued in March of 2017. This order removed Iraq from the list and added some other countries. But the current iteration, the one that's [inaudible 00:02:08] before the Court has several countries that are on the list. Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. And the argument is that this provision violates both statutory law and Constitutional law.
The argument that it violates statutory law concerns a provision of the Immigration and Nationality Act, Section 1152. And this bars discrimination with respect to issuance of immigrant visas based on nationality. And several lower Courts have held that this policy runs afoul of that because it restricts issuance of visas based on nationality.
The more complicated issue, and one that Ilya and I will probably talk about more concerns the First Amendment. That is, does the President's statements concerning Muslims both on the campaign trail and after he took office run afoul of the Establishment Clause. That is he [inaudible 00:03:01] an impermissible animus towards Muslims that would render this policy unConstitutional.
These arguments [inaudible 00:03:10] have not gotten full vetting in the lower Courts, because for the most part they've all ruled against President Trump. The first Court [inaudible 00:03:17] will actually give President Trump, it's a [inaudible 00:03:21], will be the US Supreme Court. Specifically, the argument is this. That the President's statements do not amount to an impermissible form of animus, and second that the President has the statutory authority to take the actions that he did. Let me walk through the arguments briefly until they throw me off the plane.
The first statute you have to study is Section 1182(f). Section 1182(f) gives the President the power to suspend entry for any aliens that he deems detrimental to American interests for a period so long as he shall deem necessary. This is a very broad delegation of authority, but not the only authority the President has. The Supreme Courts also recognize that there's Article II, that is inherent Constitutional authority to engage in the denial of entry. So, in a case where you have both statutory authority and Constitutional authority, I think Justice Jackson teaches us that the President's powers is at its maximum, and the review of the Courts should be at its minimum. So that's a quick thumbnail sketch of the statutory argument.
The Constitutional one's a little bit more complicated, because it requires the question, to what extent should the Courts be considering statements made by Donald Trump on the campaign trail? And also statements made by President Trump since he took office? This is a fairly new area of the law, about Presidential speech and Presidential tweets. My prediction is that the Court does not base the ruling on Presidential tweets. I think it's gonna be very difficult to do so. And I say this in part because the Justices have already allowed a huge portion of the order to go into effect. The full travel ban has been in effect since December. And as a general matter when the Court allows for a judgment to be put on hold, that's an indication that their going [inaudible 00:05:08]. So, I think it's a safe bet that [inaudible 00:05:11].
And in order to rule for the President on Constitutional grounds I think they'll have to look past the various statements [inaudible 00:05:19] campaign trail. Statements he made while in office are trickier. I do think the President's statements made while in office [inaudible 00:05:25] probative. That they can be used. But I don't think they [inaudible 00:05:30] on the campaign trail. And on any event, what we have here is an order here that I think is backed up by a significant amount of Executive Branch [inaudible 00:05:39], and I don't think this is sort of policy that the Supreme Court's prepared to halt. If I had to venture prediction, and those are always risky, I think it actually splits seven to two in favor of the President and the statute, but splits five to four on the Constitutional question.
The far greater interest of me, beyond what the Court will do, is how the Court goes about doing it. Even if they rule for the President on the basis of the statute, the statute only concerns immigrant visas. It doesn't concern non-immigrant visas. So, one way or the other, they'll have to reach the Constitutional question. So, a few things to think about. First, does the Establishment Clause even apply to the President in the aspect of immigration and foreign policy? We have many aspects of immigration law that countenances nationality. For example, we issue visa ... I'm sorry, that countenances religion. For example, we issue visas based on whether someone's a pastor, and we issue visas to Evangelicals and other religious groups. So, I think there's some issues that the Court will have to address there.
Second thing, the Court will have to address the issue of animus as applied to the President. You know, we have lots of decisions where the Court has struck down legislation based on signs of animus to a legislature, but what happens when it's the President himself who has the animus? I would just caution that the same sort of rules may not apply here. So, think of it this way, if the Court indeed finds the President has shown an animus towards Muslims and Muslim-Americans in general, does that disable only the travel ban, or other aspects of his foreign policy? That is, what else can the President not do towards the Middle East because of this? And if this ruling is upheld, the President's also said some pretty bad things about Hispanics, and Mexicans, and Latinos. Does that mean also that he can't engage in aspects of foreign or domestic policy toward those groups as well?
So, there are a lot of very difficult issues here. Whether or not the Court reaches the question of how to cite tweets and whether they should, I think the President will probably prevail. Although, the ground becomes a lot more difficult.
They're beckoning me inside the plane. So, I'm gonna go ahead and mute right now. I'll probably listen to Ilya [inaudible 00:07:41]. But, if anyone has any questions, you can free to email me. Hopefully there are no [inaudible 00:07:45] protesters on the line. If there are, you know where to find me. So, thank you very much.
Dean Reuter: Thank you, Professor Blackman. Professor Somin, go right ahead.
Prof. Somin: Sure. So, I'm sorry that Josh is having these issues with the plane. I will try to cover the issues as I may. As Josh mentioned there are a number of complex aspects of this case. But, at its bottom it comes down to three very simple propositions. First, this order or proclamation, whatever you want to call it is motivated by religious discrimination against Muslims. We have that from the horse's mouth itself. Secondly, this violates the Bill of Rights, specifically the First Amendment if it is so motivated. And third, the order, even on its face, explicitly discriminates on the basis of nationality, and that is forbidden, again, explicitly by the Immigration and Naturalization Act of 1965.
So, let's take the first of these points. The motivation behind the order. As I think most people know, throughout the 2016 campaign Trump repeatedly said that he wanted to adopt a Muslim ban, a ban on Muslims entering the United States. In the summer of 2016 he switched to a so-called territorial approach. That is targeting majority Muslim countries, rather than individual Muslims as such. But, he also at the time and thereafter said that the new approach was an expansion of the old policy, not a repudiation. And on 12 separate equations at least he equated the territorial policy with the Muslim ban policy.
This makes it a classic case of pretextual discrimination. A situation where a seemingly neutral characteristic is used to target a group based on some prohibited classification: race, ethnicity, or in this case, religion. Imagine, for example, if the head of a government agency repeatedly said that he wanted to have a policy that forbids the hiring of African Americans, but then he switched to a policy that instead of directly forbidding the hiring of blacks, forbids the hiring of people with some characteristic that strongly correlates with being black, such as, for example, graduating from a historically black college. That would pretty obviously be a case of pretextual discrimination. And the same thing applies here in the case of Trump and his motivations and his territorial policy.
Now, as Josh mentioned, there is some dispute about whether you can use the President's campaign statements as evidence of his motivation. I think there's a pretty strong argument that you can. The Supreme Court in its historical jurisprudence on pretextual discrimination suggests that what is relevant is evidence of the historical background of the decision and "the specific sequence of events leading up to the challenged decision." I think it's pretty obvious that Trump's campaign statements and promises are part of that specific sequence of events, and that absent those statements this travel ban policy would never have happened. Moreover, the motives of a single decision-maker like the President are often actually easier to discern that those of a multi-member legislature or administrative body. Indeed, if this is not a case of pretextual discrimination, it's hard for me to understand what could possibly be. We have a single decision-maker and he has repeatedly told us what his motivations are.
Now, Josh said, well, maybe there's a slippery slope here. Some other aspects of his policies could be disabled. Again, the Supreme Court in this pretextual discrimination jurisprudence has addressed this in the past. The question is whether the policy at issue can be traced to a specific discriminatory motive or statement. In this case, it pretty obviously can be. There might be other cases where it cannot, or where the evidence is more iffy. But, in any event, to the extent that other policies might also be endangered, this might actually be a feature and not a bug, if those other policies do have similar problematic motivations.
I would add also that the jurisprudence in this area does not actually say that any time there is evidence of an unConstitutional motivation that by itself means the policy must be struck down. The government has the opportunity to rebut, to show that they would have adopted the same policy anyway, because there's other evidence or justification proving that the policy has a legitimate purpose. In this case, such evidence is extremely weak because the total number of people killed in terrorist actions by entrance into the United States from any of the six Muslim majority countries covered, that total number is actually zero. The entrance in immigrants from these countries actually have a lower rate of terrorism than native-born Americans do. Indeed, you are more likely to be killed in a lightening strike, or the average American at least is, than by an immigrant terrorist of any kind, whether from these countries or otherwise.
So, I would add also that if you exclude reference to campaign statements in cases like this, then you create a roadmap by which politicians could implement bigoted policies. They simply say their true motives in the campaign, then they shift to more moderate sounding rhetoric later. And if Trump can use this roadmap, other more skillful politicians can certainly use it in the future. Many of them, of course, have better self-discipline than he seems to.
There are a couple of differences between Travel Ban 3.0 and previous iterations of the travel ban, but I don't think any of them changed the outcome of these issues. Five of the six countries, five of the six Muslim majority countries are the same as in Travel Ban 2.0. The addition of Chad, it's also majority Muslim, and there's also no real evidence of any security risk there. The addition of North Korea and Venezuela are basically purely symbolic. There are almost no entrants from North Korea to the United States anyway. And the Venezuela exclusion only applies to a few high ranking government officials and their families.
There is also a new information sharing rationale that the government has deployed for Travel Ban 3.0. Supposedly they're covering countries that don't share information with the US. But, David Bier of the Cato Institute has published a pretty good analysis of this rationale, and he shows that some of the countries barred actually do meet information requirements, whereas many countries that are not included in the travel ban do not. So, it's very unlikely that this information sharing issue is the true motive. It seems like a put up job developed after the fact and not even developed very well.
There is the question about whether the Bill of Rights actually applies to immigration policy at all. We can go into this in greater detail in questions. I would say that there's nothing in the text of the Constitution which says that it does not. It doesn't say Congress shall make no law, except an immigration policy. It says, Congress shall make no law. Similarly, in the early republic, founding era practice repeatedly in fact applied the Bill of Rights, even to US government actions abroad, even to those targeting non-citizens. For example, even pirates captured on the high seas had the same due process rights under the Fifth Amendment if they were charged with a crime as Americans taken in the United States. And surely what applies to pirates applies to peaceful migrants as well.
Finally, on the statutory point, I think in Section 1152 of the 1965 Immigration Act, as Josh mentioned, specifically bars discrimination on the basis of nationality in the issuance of immigrant visas. This is exactly the kind of discrimination in which the President's proclamation engages. Now, it is true that Section 1182 seems to give him the power to exclude "any aliens he considers detrimental to the interests of the United States." But, that was enacted 13 years earlier. And basic legal principle suggests that a later enacted law should trump one enacted earlier. Moreover, if you look at Section 1182, if you say that this does determine the outcome here, it appears to give the President virtually unlimited power to bar anybody. And that raises serious Constitutional problems not only under the First Amendment, but under the Delegation Doctrine and others, and there's a longstanding rule of interpretation that we try to avoid Constitutional problems where possible. Indeed, that was the whole basis of Chief Justice Robert's decision in NFIB.
What will the Supreme Court do here? I'm less confident in my prediction than Josh is. I think the case could easily go either way, both on statutory and Constitutional grounds. I think it is very likely that Justice Kennedy will be the key swing voter here. And I've sort of given up trying to predict what Kennedy will do in a close case. It's been too difficult for me to figure it out on previous cases. So, I'm not gonna pretend to knowledge about what he might do that I don't actually have.
And with that, I very much look forward to your comments and questions and to further discussion, if hopefully Josh is still with us.
Prof. Blackman: I am, actually. The door hasn't quite closed yet, although they beckoned me it. So, let me try to respond briefly before the safety demonstrations come on. Ilya, you give a very thorough presentation, and we've debated this topic a handful of times, so I think I can give his topic, he can give my topic. Let me make a few broader points.
First, Ilya mentioned the Delegation issue and the avoidance canon. That's actually very relevant. In this case, there's actually a Constitutional power that the Court has recognized an inherent power of the President to [inaudible 00:17:54] people. And if we read Section 1152 as limiting the President's power to exclude, that actually [inaudible 00:18:01]. I think the better way of reading is in harmony that section 1152 concerns [inaudible 00:18:10] visas, that's something within Congress's power. And 1182 concerns denial of entry and that's in the President's power. The President could deny entry to people, and that's [inaudible 00:18:21].
One other final point before I'll shut up and maybe take a question is how we handle the [inaudible 00:18:36]. Ilya has [inaudible 00:18:40]. There's a Democratic party here. President was elected to office given those statements. And then to say that he's disabled from exercising power because of those statements is very problematic. I [inaudible 00:18:57].
Dean Reuter: Thank you.
Prof. Somin: I would like to very briefly respond, as far as ...
Dean Reuter: Just one second. Let me open the floor to questions first, Ilya, and then I'll turn to you. And I want to let folks know who might have joined us late that we're speaking of course with Professors Ilya Somin and Josh Blackman. Josh Blackman is speaking to us from an airplane that's about to disembark, so ... About to take off, so we do have some background noise and some communication issues. In a moment we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question push the star button and then the pound button on your telephone.
So, push the star button and the pound button if you have a question for either of our guests. We're not sure how long we have Josh Blackman. But, Ilya Somin, Professor Somin, let me give you a chance to respond. We do have some questions lines up. So, go right ahead.
Prof. Somin: So, I have a brief response on two points. On the issue of visas versus entry, I don't think that distinction really makes sense, because the whole point of a visa is to give you a right of entry. If a visa is just a piece of paper it's point is undermined. On the issue of the President's inherent power, the Supreme Court has not actually in a majority opinion ever claimed that the President has inherent power to exclude anybody he wants. There are, I think, some plurality opinions and the like, which imply this, but I don't think that it's ever been a definitive ruling on this. Finally, I think it's strange to say that everybody else is covered by restrictions on pretextual discrimination under the Constitution, but the President, the single most powerful official in the entire government, the one who has the most power and the most potential to abuse it, that he's not covered. If anything, I would say the rules for such an enormously powerful official should be tighter than those for others, but at the very least, they shouldn't be looser.
Dean Reuter: Very good. I think we've set the table nicely here, thanks to both of you. Again, if you're in the audience, if you have a question, push the star button then the pound button on your telephone. And, again, sorry for the difficulties in terms of some of the sound quality issues we have. We've got three questions to get us started today so let's turn now to our first caller.
Curt Levy: Hi, this is Curt Levy with the Committee For Justice. Both professors made good legal points, so let's just concede for argument's sake that it's a tie legally. But, I guess what bothers me is ... I don't know if you want to call it the equities, or the practicalities, but our immigration policy largely is based on nationality. I mean, the lottery. So, I ... Professor Somin, are you not concerned that if it's true that these Constitutional protections apply to people who are not American citizens and do not reside in the United States that basically anybody anywhere in the world could claim that they're are being denied entry to the United States because the cap under the lottery is too low. And can say that well, you know, it really should have be x for Chinese immigrants, or German immigrants, or Peruvian immigrants, and you know, the reason it's not higher is because when these caps were set somebody didn't like Peruvians as much as they liked, you know, Austrians, whatever? Are you not opening the ... Is the Court gonna be willing to go down a road which basically would allow virtually every human on being on earth who wants to into the United States to at least make a plausible case that they're being hurt by caps that are based on their nationality?
Prof. Somin: I think it's important to distinguish here between the statutory argument and the Constitutional argument. The Constitutional argument says that discrimination on the basis of religion and also race or ethnicity and the like would be unconstitutional. And it is indeed the case that if we're excluding other people elsewhere in the world based on race or religion or other prohibited classifications they could raise an argument against that. I regard that as a feature, not a bug.
On the other hand, the nationality point is based on the 1965 Immigration Act and I think the lottery is an exception, perhaps, to that ban. The lottery, I think, has been reauthorized since then, and therefore there the issue is purely statutory. I think it is, to my mind, actually somewhat problematic to base immigration policy on nationality, and I would like to see that end. However, discrimination on nationality defined as citizenship does not face the same Constitutional restrictions as discrimination based on religion, ethnicity, or other specifically prohibited classifications under the Bill of Rights or other parts of the Constitution which restrict them.
Ultimately the key point here is this, that the Bill of Rights is a generalized limitation on Federal power. It doesn't exclude immigration policy, or any other branch of Federal policy. One can imagine a Bill of Rights which is worded in that way, that says Congress shall make no law, except in the area of immigration policy, or except in some other area of policy, but that's not the way that it's phrased.
Curt Levy: Well, my bad for saying nationality.
Prof. Blackman: I'm actually still here, calling from beyond the altitude.
Speaker 6: You can't be on a call right now.
Prof. Blackman: Oh, they're throwing me off the phone. All right. Thank you very much. This is Josh signing off.
Curt Levy: I was just gonna say my bad for saying nationality, because I was thinking of something broader, because nationality is of course, very closely tied to ethnicity. And you know, somewhat closely tied, as you pointed out, Ilya, in your argument, to religion. So, you know, I think again, virtually any human being on earth could make the argument that it's really their ethnicity that we ... You know, we don't like Peruvians as much as Austrians because Peruvians are their race is Hispanic, and their ethnicity is Peruvian.
Prof. Somin: So, if they have evidence to back their argument, then they could but, in most cases, such an argument could be rejected under the Federal rules of civil procedure. This is a little bit like saying that, you know, we have 300 million people in the United States, and any time there's a government policy that disfavors them they could potentially file a lawsuit saying well really they're being disfavored because of race or ethnicity or some other prohibited classification. We have procedural devices for dismissing frivolous lawsuits. They work with the 300 million Americans and they can work with these other people as well. Especially since, as a practical matter, most of the people in the world would find it somewhat difficult to finance a lawsuit in the US, or to bring one, unless they had at least some real chance of winning. And even then they wouldn't ...
I would add also that it's actually quite unusual, at least in modern times, historically it was more common, but in modern times, it is very unusual to find an immigration policy so openly motivated by a prohibited classification as this one. And my concern is that if this is allowed in other openly bigoted policies also would be in the future. That this would set a new, and very dangerous standard.
Curt Levy: So, to kinda close the circle, you don't seem worried that the Supreme Court will be afraid to go down that road?
Prof. Somin: I guess it depends on exactly how you define the road. But, to my mind, striking down immigration policies that are clearly motivated by racial, ethnic, religious, or other similar kinds of discrimination to the extent that such policies occur, the Courts can and should reject them.
Curt Levy: Okay. Thanks.
Dean Reuter: Once again, if you have a question we have one expert left. Professor Ilya Somin. If you joined the call late, Professor Blackman was boarding a flight. He hung in there as long as he could. So we have Professor Somin with us. If you'd like to ask a question, push the star button then the pound button on your telephone. We've got two questions pending. One question pending now, somebody erased themselves from the call queue. Let me just ask a question that goes to clearly motivated, if I could. And that's the use of candidate Trump's statements. Is there a time in the future where that evaporates? I mean, what if, after the mid-terms, if President Trump goes out and campaigns for a bunch of folks, mentions immigration, never goes there in terms of what you would describe as clear motivation that crosses the line. Or even, imagine a second term President Trump campaigns again, and doesn't say anything that amounts to clear motivation, so he's re-elected. And then tries to implement a like policy. What does that do to the underlying arguments.
Prof. Somin: So, I guess this is similar to the issue I talked a little about in my earlier statement, which is that the issue is not how much time has passed. The issue is whether there is a clear connection between the challenged policy and the bigoted motivation. And like any other legal question where it comes down to people's motives for their actions, it has to be dealt with on a case by case basis. There are lots and lots of areas of law where motivations are relevant. Over time doctrines have been developed. Here the Supreme Court does have a doctrine. First they ask is there evidence that this motivation applies to a particular policy. And second they ask if they do find such evidence whether the government can prove they would have enacted the same policy anyway. I think that test has worked pretty well in other contexts. And there's no reason to think it can't work well in the case of the President of the United States, in a case like this.
On the other hand, there is a grave risk on the other side that if the Supreme Court were to issue a ruling saying well, campaign statements are just generally excluded or the President is the only official whose motives we're not allowed to examine, that would create a blank check for all sorts of bigoted policies. As would any other case involving motivation, it's obviously possible to make mistakes. And there again, that would be cases where they're close and borderline. I think this is a problem that we should be willing to live with, given the very dangerous alternative of just creating a blank check for all kinds of unConstitutional discrimination.
Dean Reuter: And you're not hanging your hat on the fact that these were campaign statements? I mean, if President Trump had been a law school professor at the time, and he wrote a lengthy, reasoned argument laying out the reasons for an immigration moratorium or ban your analysis would remain the same?
Prof. Somin: If that lengthy statement of reasons from when he was a law school professor then formed the basis for his later policy, then yes. Again, the relevant connection is between the statement and the actual policy. Obviously, the further back in time we go, or really the further removed the statement is from the policy, and the less the connection between the two, the weaker the evidence becomes. I get it, similar to any other case where we're dealing with people's motivations. If you want to say that government officials' motivations are just totally irrelevant to the Constitutionality of their policies, then numerous Supreme Court precedents would have to be overturned. And more importantly, officials would have an opportunity to create discriminatory policies simply by finding some characteristic that correlates closely with the identity of the group they want to discriminate against. I mentioned, for example, discriminating against blacks by targeting historically black colleges. But, there are many other similar policies that you can adopt. Indeed, in the extreme case, you could reenact most of Jim Crow simply by using characteristics that correlate with being black as opposed to using race itself as a direct factor in the text of the law.
Dean Reuter: Interesting. Yeah, I've also seen cases where I think politicians have ... Maybe the right word is rehabilitated themselves, where they have one position on gay marriage, time passes, they take another position. So, would you allow for the idea that somebody's motives can change?
Prof. Somin: For rehabilitation?
Dean Reuter: Yeah.
Prof. Somin: That's an interesting question. And I think certainly politicians, like the rest of us, can change their mind over time. If there is clear and strong evidence that the person in question really has changed their mind, and they adopt a policy that's different from the previous one, or, I think this would be unusual, but if they even readopt the same policy, but they present strong evidence that that same policy is justified by considerations unrelated to bigotry, then perhaps, in those types of instances, "rehabilitation" might be allowed. But we're nowhere near any such thing in this case.
Dean Reuter: Right. Once again, if you have a question, push the star button then the pound button on your telephone. We've got almost 30 minutes left, and we've got three questions pending. Let's turn now back to the callers. We've activated the phone line of the caller from area code 321. You might need to unmute your phone, Caller. Can the caller at 321 speak up? We can't hear you. Okay, more technical difficulties today. Let's move on to the next caller. If that caller wants to ring back in, push the star button, then the pound button on your telephone.
Speaker 7: Hello. I have the floor. Two questions, at least. I mean, one, as I listen to this, my apprehension is that when policies are enacted by political figures or anyone else, this is then going to set off a search through every possible comment they've made in an attempt to argue that their action is, apparently I guess, as I understand it, unConstitutional because they have said something, I guess, we can debate how many times they have to say it. So that's one sort of question and concern I have.
The second is sort of a general question, and that is ... And I don't know that I unders- Why is this case in Hawaii? Somewhere I read that there's a fair amount of forum shopping involved, which I guess you can't really do anything about. But, I'd comment on that if you would. And the third question is, what about the flip side of this, where you get a President, who during their campaign has made it very clear that no matter what the law is, they're gonna do xy and z, how does that play into this? I then have a right to insist that they enforce the statute and are no longer a decider because they've made it very clear that whatever law you're talking about that they are simply not going to enforce?
Those are the three questions.
Dean Reuter: Yeah.
Prof. Somin: So, I think there ... That's actually three questions rather than two. But, I'm happy to try all three of them. On the first issue of searching through all of their comments, again, this is not unique to this case. For decades the Supreme Court has had a doctrine which said, a) pretextual discrimination is unConstitutional, and b) you can look at the background, the decision, for evidence of unConstitutional motive. And this has not resulted in some kind of chilling of all government policies. The reason for that is that there are restrictions on this doctrine. One is you have to show that the evidence actually is linked to the particular decision that you're challenging. And second, the government has an opportunity to present evidence saying that the policy would have been enacted for legitimate reasons anyway. I think those safeguards work reasonably well, and have worked well, and they can work well for Presidents too. And on the other hand, there is a dangerous slippery slope on the other side that this would be a blank check for discriminatory policies if this sort of thing is allowed.
On the issue of forum shopping, it is indeed likely true that the plaintiffs in the cases challenging the travel ban have tried to find fora which they're more likely to prevail in, in the 4th Circuit and the 9th Circuit. Of course, the same exact tactic is used by the other side of the political spectrum as well. Like, for instance, bringing in Texas the case challenging Obama's DACA policies. I think, I'm not sure there's really a good way to prevent this because in both of these cases, both the conservative and the liberal ones, they did have good, standard legal rationales for bringing in the districts where they were bringing them. In the case of Hawaii, it is in fact the State of Hawaii which is the lead plaintiff there, so surely they have a right to bring their case in Hawaii if they want to. So, if we want to end forum shopping, we would probably have to have a very differently structured Federal legal system than we do. This could, perhaps, be the subject of a whole other teleforum about how to achieve that and in what way.
Finally, what happens if a candidate says he's not gonna enforce a particular law regardless of the situation. I think it depends on whether he in fact has a legal duty to enforce that law. But, I can certainly imagine situations where those statements would be relevant evidence, and in fact, statements by Obama were cited by the plaintiffs in the DACA and DAPA case that the Supreme Court eventually split four to four over. And therefore, I think, in areas of legal doctrine where the decision-maker's motivation is relevant to whether what he's doing is legal or not, it makes sense to be able to cite his statements as evidence of that motivation. That applies in these discrimination cases. It perhaps applies in other areas of law where motivation is relevant as well.
Dean Reuter: Once again, we're speaking with Professor Ilya Somin. We've lost Professor Blackman to his delayed flight. If you have a question, push the star button then the pound button on your telephone. Just one question pending, then our lines will be wide open. Let's turn to another caller.
Speaker 8: Hi, I rang in late, so this may have been covered. But, I'm calling about the Chinese Exclusion Act of 1882, which overtly prohibited the admission of Chinese into this country. Was that ever declared unConstitutional?
Prof. Somin: It's a good question. The Supreme Court did not address challenges to that based on ethnic discrimination. They did address a challenge to it in the famous Chinese Exclusion case of 1889 based on the theory that Congress did not have, under the original meaning of the Constitution, a general power to exclude immigrants at all. I think there's actually a lot of evidence to support that sort of argument. This is what James Madison believed, and Thomas Jefferson and others. It's why they thought that the Alien and Sedition Acts of 1798 were unConstitutional. The Supreme Court in the Chinese Exclusion Act case did uphold it, and argued that there's an inherent power of Congress to restrict immigration by ...
Of course, that means the Congress could forbid discrimination on the basis of nationality by the Executive, which they in fact have done, in the 1965 Immigration and Naturalization Act. I think there is a lot of historical evidence that the Chinese Exclusion Act was to a large extent motivated by racial and ethnic prejudice. And I think if it was assessed under the modern jurisprudence in this area then it would be struck down. Gabriel Chin, a leading legal scholar, has written extensively about this. But, of course, this was in the same era where the same Supreme Court, with mostly the same Justices, upheld such statutes as the one at issue in Plessy v Ferguson. So, in that era, many racially discriminatory and ethnically discriminatory laws were upheld. So, both domestically and within immigration policy as well.
Dean Reuter: We've got no questions pending, so our lines are wide open. If you'd like to ask a question, push the star button then the pound button on your telephone. Looks like we've got one more question, actually, two more questions. So, let's carry on with our callers. I'm trying to reach the caller at area code 816. Go ahead, Caller.
John: Hi, this is John [Rungard 00:40:47] in Kansas City. Just calling with a couple of hypotheticals for the professor. On the question of bias of President Trump based on his past statements about Muslims, does that color all activities that he undertakes that have an affect on a country that's entirely Muslim? I'm just thinking of the strikes in Syria. Would our recent actions there be subject to challenge based on earlier statements made by the President because Syria is a predominantly Muslim country?
Prof. Somin: I think I've ... No, I'm sorry. Go ahead.
John: Second point I guess, and this came out a bit when the policies were first announced, that critics of the policy admitted that if the same policies had been adopted by the prior administration there wouldn't be any challenge to them based on lack of religiously prejudiced statements. I guess my question is, if lacking those religious statements, is there any limitation on what the administration can do with regard to particular countries on immigration policies? I'll stop there, thanks.
Prof. Somin: Yeah, so I think that's really three questions. Let me ... Let me take them in the reverse order. Would there be limitations lacking the particular statements? Yes, of course there would be. The President still can't violate statutory law. He still can't engage in explicit and open discrimination based on Constitutionally prohibited categories, including religion, and so on. So, there would be those other constraints. But, of course, if we didn't have the evidence of the statements, then it would not be possible to argue probably that an action that on its face did not discriminate on the basis of religion had these elicit motives.
On your second question about whether it would be Constitutional if another President did the same thing, I think this sort of issue is inherent in any case involving pretextual discrimination where the President, or any decision-maker's motive is relevant. If motive is relevant, then that open up the possibility that a decision-maker with a different motive, if he did the same thing, what he did would be Constitutional, but that's an inherent feature of all pretextual discrimination law. It's not specific to this case. Moreover as a practical matter, where the motive is pretextual, and where the supposed national security rationale is as incredibly weak as it is in this case, it is in fact highly unlikely that a President who didn't have these kind of motives would seriously consider doing this kind of action.
So, pretextual discrimination doctrine does serve a purpose, even though hypothetically the same sorts of policies could be adopted for a different reason. Because many of these policies, they would not in fact be likely to ever be adopted absent discriminatory motives. For example, if you look at the history of Jim Crow discrimination, there were policies such as literacy tests, which on their face were neutral, but the motive for them was to exclude African American voters. It is highly unlikely that Southern states would have enacted literacy tests to anything like the same degree absent the discriminatory motives. There was good reason to conclude, therefore, that those policies were unConstitutional. And the same point applies here.
Finally, on I think your first question, if I remember correctly, was about the issue of what about other policies targeting majority Muslim nations. Here I would just advert to the points I made already earlier in the discussion. Which is that you have to be able to trace the challenged policy specifically to the bigoted statements, and in this case, the tracing was done by the President himself. He himself said, on a dozen occasions, that the so-called territorial policy is just a continuation of the Muslim ban policy, and is intended to do much the same thing. Therefore, here there is a clear connection.
In the case of something like the air strike on Syria, to my knowledge at least, there is no such connection, or even remotely close to it. But, as I indicated earlier, as with any policy involving pretextual discrimination, there are gonna be some borderline cases. There are gonna be cases where the motive is not as clear as it is here. The only possible way to avoid such situations is to say that pretextual discrimination cases will no longer be heard by the Courts. And if we do that, we have to reverse many decades of Supreme Court precedent, and we also have to in effect create a blank check for all kinds of discriminatory policies.
John: Well, unless you draw a distinction between foreign policy and immigration, and domestic.
Prof. Somin: Well, there's nothing in the Constitution which draws a distinction when it comes to the First Amendment, and other prohibited forms of discrimination on that basis. So, you would in effect require the Supreme Court to make up a distinction which is not written into the Bill of Rights. Moreover, as a practical matter, foreign policy and immigration policy intersect with domestic policy in all sorts of ways. So, it would be very difficult to create an exception that wouldn't severely impact American citizens, residents of the United States, and many others.
Dean Reuter: Once again, thank you, Caller. We've got about 15 minutes left. It looks like we've got three callers on the line with questions. This is, I guess, getting to another hypothetical, but I'm trying to sort this out myself, and this is very interesting. I'm looking at some, or thinking about some other candidate statements. I think these were all candidate statements, and I'm wondering ... I suppose these could each, in their own way, be used to describe, or to ascertain somebody's motive in subsequent policy proposals. Candidate Mitt Romney talked about the 47%, I think sort of disdainfully. Folks that were receiving government entitlements. Could that statement be used to argue in any subsequent Executive Order or Executive Action that he was acting not with anti-religious motivation, but with some bad motivation against people who were receiving government benefits.
Likewise, candidate Hillary Clinton talked about the basket of deplorables. I don't know how big that basket was, but I think it was anybody who was willing to support President Trump. So, if she enacted an Executive Order, for example, that would disproportionately negatively affect folks who had voted for candidate Trump, could that be taken as indicia of bad motives? And then, finally, candidate Obama mentioned Midwesterners, I think it was, clinging to their guns and religion. That was specifically religious. But, could any Executive Action on religion, or even Second Amendment issues be examined in light of that sort of motive?
Prof. Somin: So, I'm happy to address all three of those. The case of Romney I think is the easiest of these. There is no Constitutional bar on targeting and discriminating policies based on whether people are receiving government benefits or not. In fact, we have policies like that all the time for all sorts of things. So, even if Mitt Romney had some ill-will toward such people, it wouldn't raise any Constitutional questions.
On the issue of the basket of deplorables, and people clinging to their guns and religion, I think to make it analogous to Trump, you would have had to have had either Hillary Clinton or Obama, or both of them, say you know, I deplore these evil, deplorable people, or these people who cling to their guns and religion. And if I get elected, I'm gonna enact various policies to punish them, deny them certain government benefits, or tax them more, whatever it is. If in fact they had made statements like that, and then proceeded to enact those kinds of policies, then I think it would be entirely legitimate to challenge them. And indeed, many of the people currently defending Trump's travel ban would likely lead the charge to challenge any such policies.
And by the way, we saw that to a certain degree, maybe no Obama initiating it personally, with the IRS targeting people who expressed conservative views. There I think, even though in each case, when they denied them tax exemptions there was some pretextual reason why they did it, nonetheless, conservatives argued, I think entirely correctly, that it was unConstitutional for the IRS to do that. And I think the same would apply to any kind of broader Obama or Hillary Clinton policy trying to punish people for holding political and other views that those candidates disapproved of. So, I think actually, to the extent such a thing could happen, the ability to use the President's campaign statements as evidence of his motives, or her motives in the case of Hillary Clinton, would be a feature rather than a bug.
Dean Reuter: Let's turn back to the audience. See if we can roll through some additional questions. We're trying to reach now the caller from area code 248. Go ahead, Caller.
Speaker 7: No, I've had my questions answered, thank you.
Dean Reuter: All right. Turning now to the caller from area code 207.
Speaker 10: Hello.
Dean Reuter: Yes, we can hear you, Caller. Go right ahead.
Speaker 10: Okay, I don't know whether my illustration is factual or not, but either way, it should give some pause to those who think there should be no limits on immigration. When President Carter visited, allegedly, China while he was President, he was very critical of their policy of not allowing immigration. At which time the Chinese leader said, "Well, if you will accept 100 million Chinese, I will send them to you." We had about 250 million Americans at the time. So, isn't there legitimate reason to restrict the numbers of immigration? Such a policy would not have affected China very much at all. But it would very much have affected the United States.
Prof. Somin: Yeah, so this case does not concern the issue of whether it's possible to restrict immigration for any reason at all. It concerns the issue of whether there are certain criteria for exclusion that are forbidden, in this case religious discrimination. In some other cases, racial or ethnic discrimination. But, you could potentially have an overall cap on immigration, or criteria based on things that are different from racial or religious or other exclusions.
My own view, which I'm not gonna attempt to describe here or defend here, is that as a general rule, immigration like internal migration should be restricted by the market and by civil society rather than by the government trying to calculate how many people there should be. You can easily imagine hypotheticals, like for instance, that some states are far wealthier than others, and therefore people from poor states like Mississippi might all move to the wealthier state and swamp it. In reality, housing markets, job markets, and the like do a pretty good job of sifting that.
But, again, I emphasize, these issues are orthogonal to the present case. If the travel ban is struck down, and if the Supreme Court rules that the government is not allowed to engage in religious or ethnic discrimination immigration policy it will still be able to restrict immigration on the basis of a wide range of other criteria, including the number of people, their job qualifications, criminal records, and so forth.
Speaker 10: Thank you.
Dean Reuter: Let's see if we can get these final two questions in.
Speaker 11: Hi. Thanks for a really interesting presentation. Professor Somin, you use the term bigot, and bigotry, and bigoted several times. I kinda lost count. But, is that a moral or a legal category, or both? And does it shift over time so that Lincoln's views on blacks, for example. The views in the 50s, 60s, 70s on homosexuality, views on abortion, the anti-Catholic views behind the Blaine Amendments, and the views as relating to immigration specifically, on the difference between Northern and Southern European immigrants that the United States has forever done. So, which of those would be bigoted, which of them would be discriminatory, if bigot is not a legal term?
Prof. Somin: So, bigot in and of itself is not a legal term. However, certain kinds of bigotry have legal significance in cases where the bigotry leads to the enactment of policies based on unConstitutional motives like discrimination on the basis of race, ethnicity, religion, and so forth. I don't know that we have the time to go through every one of these examples, but I'll just mention the case of the Blaine Amendment. There is, in fact, litigation in various states, litigation led by conservatives by the way, arguing that Blaine Amendments should be struck down because of the unConstitutional motives behind them. I think that litigation deserves to succeed because there is very extensive evidence that the Blaine Amendments were adopted, primarily at least, based on anti-Catholic bigotry. Even though on their face, the Blaine Amendments are religiously neutral.
And more generally, one reason why we have the 14th Amendment, the Bill of Rights, and other restrictions on government discrimination is precisely because it is a bad thing when certain kinds of bigotry lead to discriminatory government policies. And my hope is that over time, we have been able to constrain those policies more than in the past. And I regard that, generally speaking at least, as a good thing.
Dean Reuter: Looks like we'll have time for our final question.
Speaker 12: I wondered why Korematsu v. The United States from 1944 doesn't control Hawaii v. Trump. It's never been overruled.
Prof. Somin: So, I think for a couple of reasons. One is that even though it has not been overruled, it is regarded extremely negatively, and the Supreme Court has actually criticized it in various opinions. Indeed it is significant that the administrations defenders, if you read their briefs, they do not rely on Korematsu, and in various statements, they try to distinguish Korematsu as much as possible. So, I and I think most other people on my side of this case, they would be very happy if this case were analogized to Korematsu because it's so widely agreed that Korematsu was a horrible decision. And if the Supreme Court is faced with the choice of either upholding this case based on Korematsu or of overruling Korematsu, I think there will almost certainly be a majority for overruling Korematsu. Though, I do recognize that many defenders of the administration essentially argue that Korematsu is a different case than the present one on various bases. The main one they claim is that Korematsu, at least most of the people involved in Korematsu, were US citizens.
But, if it comes down to this case being essentially the same as Korematsu, then I would actually be very happy with that analogy, because that means that my side of the case would probably win.
Speaker 12: You don't think that it makes any legal difference? Because Korematsu lost, even though he was an American citizen. And that the people involved in Hawaii v. Trump have no ownership interest in the United States.
Prof. Somin: Yeah, so my view, like that of the vast majority of experts, is that Korematsu is a horrible decision. And should not govern, and if necessary, should be overruled. In my view, there are some Constitutional rights that are specifically reserved for US citizens only, like those of the Privileges or Immunities Clause, for example. But, the Bill of Rights, and the Court has actually repeatedly ruled this, the Bill of Rights applies to non-citizens as well. For example, if non-citizens' property is seized by the government, they can claim the rights of the Takings Clause. If the government tries to censor the speech of non-citizens, they can claim the Free Speech Clause. And I think the same point applies here.
Speaker 12: Even though they've never overruled Korematsu.
Prof. Somin: They have never overruled Korematsu. But they have strongly intimated that they don't believe Korematsu is a binding precedent. And there is good reason why even the defenders of the administration, if you look at their briefs, they are trying to run away from Korematsu as fast as possible. Any attempt to say that this case is just like Korematsu, that's a move that is very likely to help the plaintiffs, rather than the administration in this case.
Speaker 12: Thank you.
Dean Reuter: Well, my thanks to Professor Josh Blackman, he's not on the phone with us any longer. As I said at the outset, if you joined us late, he was with us only for the first 15 minutes of the call or so, getting on a plane that he had tried to rearrange in deference to this call. We do have one question pending, but we have a hard stop at four o'clock, so I'm afraid we're gonna have to let that hang for the next time. The case is being argued on the 25th, so we will revisit this, probably after the argument, and certainly when a decision comes out.
My thanks as well to Professor Ilya Somin for hanging in there for the duration of the call, and taking all the questions, including my own. And to the audience for dialing in and for your thoughtful questions. A reminder to the audience to check the Federalist Society's website and monitor the emails for upcoming teleforum conference calls. But, until the next call, we are adjourned. Thank you very much, everyone.
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