John C. Eastman is the Henry Salvatori Professor of Law & Community Service, and former Dean, at Chapman University’s Fowler School of Law, and a Senior Fellow at the Claremont Institute.
The Supreme Court’s October Term 2016, just concluded, might justifiably be described as fairly lackluster. The court had before it none of the “hot button” political issues that have marked its docket in recent years. No cases dealing with abortion, or racial preferences, or redefining marriage to encompass homosexual relationships, for example. Many commentators have attributed the lack of such cases to the fact that the court was undermanned after the death of Justice Antonin Scalia in February 2016, evenly split on such ideologically-charged issues. Indeed, the most controversial case of the term, Gloucester County School Board v. G.G., disappeared three weeks before it was set to be argued, after President Donald Trump’s administration revoked the guidance memo mandating bathroom access by transgender students according to their gender identity rather than their biological sex that had triggered the litigation.
Nevertheless, the Supreme Court is not blind to the controversies swirling in the lower courts, and it is not hard to imagine that there may be some anticipatory posturing going on in some of the “below the fold” cases from this term, with an eye toward next term’s blockbusters, particularly including the various legal challenges to Trump’s executive order on immigration that are now on the court’s docket for the fall.
In Ziglar v. Abbasi, for example, decided June 19 by a really short-staffed 4-2 vote (Justices Elena Kagan and Sonia Sotomayor were recused, and Justice Neil Gorsuch was not yet on the court when the case was heard), the Supreme Court held that a Bivens remedy was not available for constitutional violations alleged to have been committed by federal officials (including the attorney general) in the wake of the Sept. 11 terrorist attacks, against several immigrants from Middle-Eastern countries connected to those attacks. The court could have ended the opinion there, because it has been particularly stingy in extending Bivens remedies to new contexts in a slew of other recent cases. But it did not. Instead, the majority opinion by Justice Anthony Kennedy includes an extended discussion of separation-of-powers principles in general, and the role of the executive in matters of national security in particular. This was more than a standard “law enforcement operation,” Kennedy noted, but rather one “requiring an inquiry into sensitive issues of national security.” “National security policy is the prerogative of the Congress and President,” he added, pointing out that “[j]udicial inquiry into the national-security realm raises ‘concerns for the separation of powers in trenching on matters committed to the other branches.’” “For these and other reasons,” he continued, “courts have shown deference to what the Executive Branch ‘has determined … is ‘essential to national security.’’” And perhaps most pointedly, Kennedy reaffirmed the long-standing view that “‘courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs’ unless ‘Congress specifically has provided otherwise.’”
One cannot help but sense that the looming challenge to the president’s executive order temporarily suspending immigration from six countries that present a heightened threat of terrorism was fully in Kennedy’s mind when he penned those words. “Congress has not provided otherwise here,” he concluded that discussion. Similarly, in the context of Trump’s executive order, far from “providing otherwise,” Congress has unambiguously authorized the very actions the president took.
Of course, this was Kennedy, so the notion that the Supreme Court should defer to the national-security judgements of the president and Congress had to come with its own caveats, and such caveats followed that strong separation-of-powers discussion as sure as night follows day. “There are limitations, of course, on the power of the Executive,” Kennedy was quick to point out, “even with respect to matters of national security” – citing as authority his own opinion in Boumediene v. Bush that many believe already amounted to an unconstitutional usurpation of power by the judiciary in an area the Constitution reserves to the president. So he seemed to leave himself just enough wiggle room to maneuver around the separation-of-powers holding when the immigration-executive-order case comes up, if he is so inclined.
A pair of unanimous decisions on other aspects of immigration law, authored respectively by two justices on opposites sides of the usual ideological divide, might also hold some hidden gems relevant to the upcoming Trump v. International Refugee Assistance Project. The May 30 decision in Esquivel-Quintana v. Sessions, written by Justice Clarence Thomas, laid out a careful textual analysis en route to holding that the federal statutory language defining an “aggravated felony,” to include “sexual abuse of a minor,” did not mandate removal under a state statute that permitted conviction of someone just over 21 for having sexual intercourse with someone just under 18. Whether Chevron deference was required – a subject that Thomas has become increasingly vocal about – was not even at issue “because the statute, read in context, unambiguously forecloses the Board’s interpretation.”
On the other side of the aisle, Kagan wrote the June 22 decision in Maslenjak v. United States, also providing a plain-meaning textual analysis of words like “procure” en route to holding that a false statement on an application for refugee status (and later citizenship) must be material in order for the applicant to be guilty of having procured naturalization contrary to law. But that is where the unanimity ended. Gorsuch, joined by Thomas, concurred only in part, taking issue with the fact that the majority opinion went much further than that – indeed, much further than was briefed or argued by the parties – to discuss not just materiality but the contours of, and exceptions to, a causation requirement that the majority also found in the statute. Similarly, Justice Samuel Alito concurred only in the judgment, providing a textual counterargument as to why causation was not an element, even though materiality was, because of another phrase in the statute, “contrary to law.”
The careful – and in the case of Maslenjak, competing – textual analyses in these two cases may well foreshadow one of the key issues in the upcoming Trump case, namely, whether the text of 8 U.S.C. § 1182(f), which unambiguously gives the president the authority to “suspend the entry of all aliens or any class of aliens,” “whenever [he] finds that [their] entry … would be detrimental to the interests of the United States,” must give way to later-adopted, but more general, statutory text prohibiting “discrimination against the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residences based on their country of origin.”
Would a careful, as opposed to cursory, textual analysis of the two provisions recognize, for example, that the restriction on the issuance of visas is not inconsistent with the grant of authority to the president regarding admission itself, particularly in light of the strong statement in Kennedy’s Ziglar opinion, discussed above, that “[n]ational security policy is the prerogative of the Congress and President,” a constitutional prerogative that “courts traditionally have been reluctant to intrude upon”? And whatever the “textual” analysis yields, are there overarching constitutional concerns that might override the textual conclusion?
Questions such as that last one were before the Supreme Court in the three remaining immigration cases that were on the docket this past term, and in all three, resolution has been pushed off to another day, strongly suggesting that the court was evenly divided on issues of direct relevance to the Trump case prior to Gorsuch’s appointment. In Hernandez v. Mesa, for example, the court issued a per curiam decision that largely ducked the constitutional issues, sending the case back for the U.S. Court of Appeals for the 5th Circuit to tackle them again on remand. Among the questions presented in the case was whether the Constitution affords protection to a non-U.S. citizen killed abroad by a U.S. border patrol officer (who fired the fatal shot from the U.S. side of the border with Mexico); whether the Constitution affords due-process and other rights to potential immigrants living abroad in the six countries listed in Trump’s executive order is another key aspect of that litigation.
The court’s per curiam decision in the Hernandez case thus likely masked an even more significant divide than was evident from the dissenting opinions, a divide that does not seem to be masked at all in the final two immigration cases of the term. On the last day before the court adjourned for the summer, both Jennings v. Rodriguez and Sessions v. Dimaya were set for re-argument next term. Both were argued months before Gorsuch took the bench – Jennings all the way back in November, and Dimaya in January. Jennings may be particularly significant, because it involves whether a pretty clear statutory mandate that criminal and terrorist aliens be detained must, under somewhat amorphous constitutional text, be afforded a bond hearing with the possibility of release into the United States despite the lack of statutory authority for admission. The several months of time between the oral arguments and the end of the term apparently did not yield any creative compromise that would break the 4-4 tie in either case. That means Gorsuch will be the tie-breaker, not just for those cases but quite possibly for how they will affect the Trump litigation. And from what we have seen of his methodology already, I suspect that will be good news for the president. Stay tuned. Next term is already shaping up to be anything but lackluster!