A Thought on the Relevance of Congressional Authorization and Related Enactments to the Establishment-Clause Question in the Travel-Ban Case

Over at Take Care, Leah Litman and Ian Samuel have a post faulting Texas for arguing, in its amicus brief in support of the government's cert petition in the travel-ban case, that because Congress has given the President statutory authorization for orders like the travel ban, the courts should give great deference to the executive under Youngstown in reviewing plaintiffs' Establishment Clause claims.  Litman and Samuel, or L&S for short, argue that Youngstown is only applicable to disputes about the allocation of federal power between the President and Congress (that is to say, though they don't precisely say this, claims that the President has acted in excess of his powers under Article II), not claims that the President has violated provisions of the Bill of Rights which limit federal power as a whole.  

I think that's entirely correct, though I'm not sure what saying things like, to quote the profligately capitalized headline for the piece, "Texas's Amicus Brief Makes An Argument That Is So Obviously Wrong Some People Thought It Was Not Worth Responding To,"* adds to the argument other than a gratuitous (and completely unfunny, unless intended as Take Care self-parody, in which case, mildly funny!) attempt at snarky insult to the people working in the Texas SG's office, or the professors who originally raised Youngstown as a defense of the order.  It's almost certainly the case of a great many perfectly good arguments that "Some People" mistakenly thought them "So Obviously Wrong" that they were "Not Worth Responding To" (even people who L&S "admire and respect," see endnote), just as it's the case of many bad arguments that some people (usually the ones making them) think them so obviously right that response would be futile.  However admirable and respectable these "Some People" are, the only argument that's laughably wrong here is the suggested inference from the fact that some people think Texas is laughably wrong to the conclusion that it is.

I also think it would occur to any minimally charitable reader of Texas' brief that the Texas SG, who's a pretty sophisticated Supreme Court advocate, may well understand L&S' indeed trivially obvious points about Youngstown, but cleverly chose to respond to the statutory arguments against the ban advanced in two strong concurring opinions -- which Texas may be concerned will persuade the Court to deny cert or affirm, as their authors undoubtedly hoped -- in the guise of a Youngstown argument against plaintiffs' constitutional claims.  The reason Texas would do this is that the majority opinion below only addressed those constitutional claims, and criticizing the concurring opinions doesn't naturally fit into any of the traditional reasons for granting cert (as relevant here, the importance of the issues decided below, and that the decision below was wrong), even though those opinions may counsel against cert.  The bulk of what's framed as a Youngstown argument is in substance an argument that, contrary to Judges Keenan's concurrence, Trump's order was authorized by 8 U.S.C. 1182, and that contrary to Judge Thacker's concurrence (as well as some very forceful blogging by Samuel), Trump's order did not violate 8 U.S.C. 1152.  The Youngstown framing seems to me to be just that: a framing device intended to avoid the awkwardness of directly attacking the concurring opinions below at the cert stage. 

While I agree, L&S's snark and perhaps uncharitably literal reading of Texas's brief aside, that statutory authorization for the President's actions does not make them constitutional under Youngstown, which is best understood as an Article II doctrine only, not a general test of the constitutional validity of presidential actions, I am not sure that I agree that statutory authorization is simply "irrelevant to the claims in the travel ban litigation," that congressional authorization "wouldn't change any of the analysis about whether the actions that the President did take did in fact violate the First Amendment" (emphasis in original), or that courts "don't need . . . to pause to consider whether there are any statutes authorizing . . . the President's actions, when they address a claim that the President has violated an individual's rights, or a particular amendment to the Constitution."  This seems very possibly wrong in the following way.

I take it a fighting question in the travel-ban litigation, though L&S may think it an extremely easy one, is whether or not the Establishment Clause applies at all in immigration.  Congress has authorized the President, in 1182, to suspend the entry of any "class" of aliens whose entry he deems detrimental to the interests of the United States, with no exception for religious classes.  In 1152, Congress forbade immigrant visa preferences on a number of grounds, including race and sex; it did not, interestingly, forbid immigrant visa preferences on the basis of religion.  Congress has, as Josh Blackman chronicles here, given special preferences in immigration to ministers going back to at least the 1880s, given preferences in asylum to religious minorities claiming religious persecution, requiring immigration courts to regularly hold trials on asylum-seekers' religious beliefs, and has given preferences to Jewish and evangelical Christian immigrants from the Soviet Union.  All of these laws would likely be on shaky constitutional ground if they concerned some important domestic governmental benefit, and their passage seems to suggest that the Congresses that enacted them and Presidents that signed them believe that the Establishment Clause applies with less (if any) strength in immigration than in domestic contexts.  As the Court wrote in an opinion it uncritically cited today that denied an equal-protection challenge to an entry restriction, "in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens."

Now, L&S say that congressional authorization is irrelevant to whether some presidential act violates the First Amendment, because the First Amendment binds Congress and the President alike.  But this doesn't quite follow, indeed doesn't follow at all, because congressional authorization of religious exclusion in immigration, and a tradition of religious preference in immigration, could be relevant to what the Establishment Clause means in the first place.  As the Court recently put it in Noel Canning, while "it is the 'duty of the judicial department . . . to say what the law is,' it is equally true that the longstanding 'practice of the government' can inform our determination of 'what the law is.'"  This sort of use of historical practice is not a remotely novel concept, and while it's invoked most often in separation-of-powers cases (though related uses of tradition are rife in substantive due process cases), it's hardly out of bounds in individual-rights cases generally or Religion Clause cases specifically.  Indeed, only three years ago, in an Establishment Clause case, the Court wrote that "it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.  Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change."  

That passage, to be sure, particularly looks on possibly originalist grounds to historical practices dating back to the Founding, and I'm unaware of Founding-era religious preferences or discrimination in immigration, though I would not be shocked to learn that they existed.  But it's far from obvious that the only historical practices that matter in Establishment Clause cases are Founding-era practices.  Arguments from post-Founding historical practice are certainly strongest in separation-of-powers cases, as there they can be justified in terms of interbranch acquiescence.  But as Curtis Bradley and Trevor Morrison wrote in the Harvard Law Review a few years ago, "not all reasons for invoking practice depend on acquiescence."  As they pretty convincingly argue, one could care about post-Founding historical practice for any number of originalist, Burkean, popular-constitutionalist, common-law constitutionalist, and reliance-based reasons.  And I strongly doubt that there are many (any?) constitutional lawyers or scholars who would claim that post-Founding congressional practice is completely irrelevant to how we should interpret, say, the Fourth Amendment, or the Fifth, or Sixth, or Eighth.

To be clear, I mean to make no claims about the extent of the practice of religious preferences in immigration or how far back that practice may go, the extent to which that practice could be justified under domestic Establishment Clause doctrine, or the extent to which post-Founding practice should inform the interpretation of the Establishment Clause in areas on which the courts, until this year, have been virtually silent.  But I do mean to claim that the fact that two branches of government (if the ban's legal critics are right about its motives) have given their blessing to religious discrimination in immigration absolutely has some bearing on what the third branch ought to do with them.

* To be fair, I don't know if L&S are responsible for their headlines, or if some crackerjack Take Care editor is.  But the post itself says much the same thing in much the same way: "Before we [engage with this argument], a note of caution: When we wrote the original post, we were told (by several people whom we admire and respect) that perhaps this post wasn’t even worth writing, because the argument we were rebutting was so silly."  Also, the Youngstown "argument is so obviously wrong that 'many law students have spotted it'" (quoting, for authority, one of L&S's own tweets).  Also, the Texas Law Review is (un)subtly shamed for having "elected to reprint in its online companion" some blog posts by Josh Blackman making that obviously wrong argument.  I have always assumed that gripes about law-review publication choices are the lifeblood of law-professor water cooler gossip, but only on Take Care can we non-academics find those gripes in writing -- and about a law review's online companion's publication choices no less(!).   

Here, I should confess to a minuscule degree of bias on account of the fact that the offending Tex. L. Rev. See Also piece cited a comment I made on someone else's blog post, which was a fun first (for my blog comments, not, I'm immodest enough to say, for this blog) that went a little ways towards justifying what's now been nearly half a lifetime of inveterate law-blog commenting.  That bias notwithstanding, the piece in question, a critique of the Ninth Circuit's first decision in the travel-ban case, though marred by an argument that I at least deem obviously mistaken, was an otherwise fine dissection of an opinion that I think most people now concede was extremely weak, and amply deserved its publication in a law review's online companion.  Even were that not the case, it strikes me as bad form to take a barely veiled dig at a law review for publishing an article because one doesn't agree with the arguments the article makes (absent factual error about what the law just is that I don't think is quite present here, as Youngstown isn't, at least on its face, circumscribed in the ways L&S cogently argue it should be).