that rests on an alleged injury to a single
plaintiff is impermissibly overbroad; and
whether these challenges to §2(c) were
rendered moot on June 14, 2017.
Citing national security concerns,
EO–2 put a freeze on issuing new visas
for travelers from six Muslim-majority
nations (Iran, Libya, Somalia, Sudan,
Syria, and Yemen) (§2), and temporarily
suspended the admission of refugees into
the United States, while also implementing
restrictions on the number of refugees
who may receive entry (§6). An earlier
executive order issued in January (EO–1)
was quickly rescinded after the Ninth
Circuit Court of Appeals declined to stay a
Temporary Restraining Order (TRO) issued
by the Western District of Washington,
and further, “declined to ‘rewrite’ EO–1 by
narrowing the TRO’s scope, noting that the
‘political branches are far better equipped’
for that task.” The president then issued
a second executive order—Protecting
the Nation From Foreign Terrorist Entry
Into the United States, Executive Order
13,780, 82 Fed. Reg. 13209 (March 6, 2017)
(EO–2)—which was quickly challenged in
federal courts in Maryland and Hawaii.
An en banc decision from the Fourth
Circuit enjoined enforcement of §2(c)—the
provision temporarily suspending entry
for citizens from six countries—after a
majority of the court found that “EO–2
cannot be divorced from the cohesive
narrative linking it to the animus that
inspired it. . . . The reasonable observer
would likely conclude that EO–2’s primary
purpose is to exclude persons from
the United States on the basis of their
religious beliefs.” While still waiting for
the Ninth Circuit’s decision in Hawaii, the
government filed a petition for certiorari
seeking review of the Fourth Circuit’s
decision, as well as asking the Court for a
stay on both injunctions and beseeching
the Court to expedite the briefing phase of
the certiorari process. The Court agreed to
expedite, and, on June 12, 2017, filings by
the government and respondents in IRAP
brought a new issue to light regarding
the suspension of entry issue in §2(c).
Respondents argued that the suspension
of entry provision would expire on June
14, 90 days after the effective date of
EO–2 (March 16), going on to say that
although the lower court enjoined portions
of EO–2, it had not altered its effective
date, and, thus unaltered, the suspension
provision would expire on June 14,
rendering the dispute over §2(c) moot, as
the section itself would cease to have any
enforceability.
Also on June 12, the Ninth Circuit
handed down a unanimous per curiam
decision in Hawaii, finding in favor of the
state of Hawaii and an American citizen
and imam whose Syrian mother-in-law
was seeking admission into the United
States. The Ninth Circuit’s decision focused
its reasoning on the determination that
EO–2 “exceeded the scope of authority
delegated to” the President, stating that
“The Immigration and Nationality Act
(INA) gives the President broad powers
to control the entry of aliens, and to take
actions to protect the American public.
But immigration, even for the President, is
not a one-person show.” The Ninth Circuit
thus upheld the lower court’s injunction
with respect to the suspension of entry
of citizens from certain nations under
§2(c), and also enjoined the §6 provision
regarding the suspension of refugees
from entering the United States and
implementation of a cap on the number of
such refugees permitted.
With the Ninth Circuit’s decision in hand,
the Court granted the parties’ requests for
further supplemental briefing. However,
before they could submit those briefs,
the president issued a memorandum to
executive branch officials, advising them
that the effective dates of each enjoined
provision of EO–2 would be the date on
which the injunctions “are lifted or stayed
with respect to that provision,” and
went on to advise that the memorandum
itself “should be construed to amend the
Executive Order.” The government thus
argued that if a mootness issue had existed
before, the presidential memorandum
sufficiently cured it.
A primary support for the government’s
overall argument is Kleindienst v. Mandel,
408 U.S. 753 (1972). In Mandel, the Court
ruled that “plenary congressional power to
make policies and rules for the exclusion
of aliens has long been firmly established.
. . . We hold that when the Executive
exercises this power negatively on the
basis a facially legitimate and bona fide
reason, the courts will neither look behind
the exercise of that discretion, nor test it
by balancing its justification against the
First Amendment interests of those who
seek personal communication with the
applicant.” Dissenting from the majority,
Justice Thurgood Marshall did not try to
hide his ire, writing, “Even the briefest peek
behind the Attorney General’s reason for
refusing a waiver in this case would reveal
that it is a sham. . . . The majority demands
only ‘facial’ legitimacy and good faith, by
which it means that this Court will never
‘look behind’ any reason the Attorney
General gives. No citation is given for this
kind of unprecedented deference to the
executive, nor can I imagine (nor am I told)
18 Q3 - 2017 www.ParalegalToday.com
the slightest justification for such a rule.”
What distinguishes Mandel from the
consolidated cases here is that while they
both raise a First Amendment argument in
an immigration context, Mandel was based
on freedom of speech and association, not
the establishment clause, as is the case here.
Still, the government’s reliance on Mandel
begs the question: can the Court “look
behind” the motivation underlying EO–2
at the president’s off-the-cuff comments,
tweets, and campaign statements, and if
so, will they be construed as anti-Muslim
animus motivating EO–2 in violation of the
First Amendment’s establishment clause?
It is also worth considering that much
more recently than Mandel, the Court
ruled in the 2005 case of McCreary County
v. ACLU of Kentucky, finding that “s
crutinizing purpose does make practical
sense where an understanding of official
objective emerges from readily discoverable
fact, without any judicial psychoanalysis
of a drafter’s heart of hearts.” The Court
went on to prescribe a “purpose inquiry”
that requires the judiciary to look behind
official government explanations of purpose
and examine “traditional external signs
that show up in the ‘text, legislative history
and implementation of the statute,’ or
comparable official act.” Whether the
Court will be more persuaded by Mandel
or McCreary County remains to be seen.
For its part, the Fourth Circuit applied
Lemon v. Kurtzman to directly address the
establishment clause issue in its opinion,
while the Ninth Circuit sidestepped
the constitutional issue altogether by
focusing on the INA and the boundaries of
presidential authority.
In a per curiam opinion issued June 26,
2017, granting the petitions for certiorari,
the Supreme Court partially lifted the
injunctions put into place against EO–2
by the Fourth and Ninth Circuits, stating
that the ban could not be implemented
“with respect to foreign nationals
who lack any bona fide relationship
with a person or entity in the United
States.” However, the exact definition
of a “bona fide relationship” has been
widely questioned as a point of crippling
ambiguity in the EO’s implementation,
despite the Court’s confidence that “the
facts of these cases illustrate the sort of
relationship that qualifies.”
Other cases to watch for this term include
Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Commission (No. 16-111)
(whether it is a violation of petitioner’s
First Amendment free speech to compel
them to produce a wedding cake for a
same-sex union, an action petitioner
claims would be in direct violation of their
/www.ParalegalToday.com