Few would question my zeal when it comes to First Amendment rights. Back in the 1980s I was the lead plaintiff in a First Amendment challenge to a Washington, DC law that made it a crime to hold-up signs or banners within 500 feet of an embassy if the signs or banners contained a message critical of the foreign government housed at the embassy. The Supreme Court struck down the DC law in a case known as Boos v. Barry. Since graduating from law school in the mid-1990s, I have put my legal skills to work advancing First Amendment rights, most notably I was co-counsel for Citizens United in the landmark case Citizens United v. FEC. I have also served as counsel for litigants and amici (friends of the court) in numerous other First Amendment cases across the country. So, when it comes to the First Amendment, I know a little something.
One of the things my many years of experience has taught me is that the First Amendment’s Establishment Clause is no basis for striking down President Trump’s newly-issued Executive Order on immigration.
The Establishment Clause prohibits the government from making laws “respecting an establishment of religion.” It has been interpreted as prohibiting too much interplay between government and religion.
According to those challenging Executive Order 13780, the order stigmatizes and discriminates against Muslims because Trump publicly expressed hostility toward Muslims as a candidate for President and vowed to enact a Muslim immigration ban if elected. They claim anti-Muslim religious discrimination is the real motivation for the order’s restrictions on immigration from six predominately Muslim nations, not the national security concerns articulated in the order itself.
So far, two federal judges, Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii and Theodore D. Chuang of the U.S. District Court for the District of Maryland, have bought that line of reasoning tooth and nail. Both judges were appointed by President Barack Obama.
In his March 15 decision enjoining enforcement of the immigration order Judge Watson acknowledges that the order “does not facially discriminate for or against any particular religion, or for or against religion versus non-religion,” yet he concludes the order was “issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose.” Judge Chuang adopted a similar line of reasoning calling the national security purpose articulated in the order “a secondary post hoc rationale.”
The two judges have applied the wrong legal standards in evaluating Trump’s order. American courts owe great deference to the President on immigration matters.
Kleindienst v. Mandel is a case precisely on point. During the Nixon Administration a group of American university professors challenged the Administration’s refusal to grant a visa to a Marxist journalist who had been invited to speak at several university campuses across the country. The professors complained that the visa denial violated their First Amendment rights. The Supreme Court flatly rejected the professors’ contentions.
In Mandel, the Court acknowledged that the denial of the visa to the foreign journalist “implicated” the First Amendment rights of the American professors who desired to hear him speak, but said that was not dispositive of the case, because:
the power to exclude aliens is ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers – a power to be exercised exclusively by the political branches of government.’
The Court resolved the case, not by engaging in a balancing test that pits the purported justification for denying entry to the country against the First Amendment interests of those who desired to interact with the excluded person. Instead, it drew a bright line, admonishing the lower courts not to “look behind” (i.e. second guess) the exercise of Executive Branch discretion in immigration matters that implicate the First Amendment. Where a “facially legitimate and bona fide reason” has been articulated for denying an alien entry into the country, the Court instructed the lower courts to uphold the Executive Branch action despite the possibility that the First Amendment rights of Americans may be implicated.
Executive Order 13780 easily passes muster under Mandel. It was issued pursuant to section 212(f) of the Immigration and Nationality Act of 1952, which authorizes the President to deny entry into the United States to “any aliens or of any class of aliens” that he deems to be “detrimental to the interest of the United States.” On its face the order articulates legitimate and bona fide national security reasons for its issuance. The order states that conditions in each of the covered countries “present heightened threats.” It continues: “Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organization, or contains active conflict zones.” Those are unquestionably facially legitimate and bona fide justifications for the order.
But instead of following the Supreme Court’s clear and precise instructions, the two Obama-appointed judges have applied the type of First Amendment balancing test applicable to domestic matters, such as religious displays on public property. That type of test, as the Court made clear in Mandel, is wholly inapplicable to immigration and foreign policy matters.
In short, what Judges Watson and Chuang have done are classic examples of judicial activism. Where Supreme Court precedent doesn’t meet the desired outcome, either ignore it, as did Judge Watson, or treat it as if it doesn’t fit, as did Judge Chuang. Their improvidently issued injunctions against President Trump’s immigration order should not be allowed to stand.
Mr. Boos is the Executive Vice President and General Counsel for Citizens United. He has been a licensed attorney practicing constitutional law since the mid-1990s.