The Revised Refugee EO: Legal and Empirical Arguments for Judicial Deference

By Peter Margulies
Monday, March 6, 2017, 4:28 PM

The revised refugee Executive Order (EO) issued today (see revised EO here and the Department of Homeland Security (DHS) fact sheet here) places the administration in a materially better legal position. As I discussed here, the revisions follow a roadmap that was available before the Ninth Circuit denied the government’s request for a stay of the Temporary Restraining Order (TRO) halting the original EO. This post also explains why two recently leaked draft intelligence assessments by the Department of Homeland Security (DHS) (the so-called citizenship memo here and the domestic radicalization memo here) don’t diminish the strong case for judicial deference to the EO’s revised terms.

As I explained in an earlier post, courts have typically deferred to the political branches’ measures on immigration. The revised EO pivots toward this zone of deference by exempting lawful permanent residents (LPRs), current visa-holders (VHs), and noncitizens with approved refugee status—all of whom had reliance interests disrupted by the original EO. The remaining group covered by the revised EO—noncitizens who have not been previously admitted to the United States—has far more attenuated legal claims. The Constitution generally does not protect noncitizens abroad who have no previous ties to the United States. Moreover, the EO only requires a pause in admissions, not a permanent bar. These features defuse the due process challenge to the revised EO.

Continuing the turn toward compliance, the revised EO excludes Iraqis, makes Syrian refugees subject to a 120-day bar (not the indefinite halt decreed by the initial EO), and deletes any mention of a priority for religious minorities. Taken together, these changes decisively pivot away from any focus on Muslims per se (recall that the initial EO itself excluded roughly 80 percent of the world’s Muslims) and allay concerns that the EO gave preference to members of  other religions, such as Christianity. These changes address the Establishment Clause concerns raised in the original challenges.

The exclusion of Iraq also responds to diplomatic imperatives, citing Iraq’s cooperation in the fight against ISIS. In addition, the revised EO is effective on March 16. This interlude should prevent a return to the chaos that occurred in the wake of the original EO’s issuance. Finally, Section 5 of the EO asks DHS to promulgate new procedures for vetting visa applicants. Notably, this section refers mainly to garden-variety issues, such as checking for fraud or terrorist ties, that are already an integral feature of consular processing.

The judicial deference that the revised EO will most likely elicit from courts is not a new phenomenon. Courts have viewed deference in foreign affairs as important for reasons noted by the Framers: as Madison argued in Federalist No. 41, outside our borders, it is difficult to “set bounds to the exertions” of foreign powers seeking to do us harm. That risk has driven courts’ willingness to grant the political branches a measure of flexibility.  The narrow tailoring often required of purely domestic measures would hamstring government in the fluid foreign affairs arena. That doesn’t mean courts reject tailoring altogether; it does mean that judges do not demand the close fit between ends and means that courts often require for domestic government decisions.

Because a more relaxed fit is all that is required, some of the recent discussion of the two recently disclosed Department of Homeland Security (DHS) draft memos misses the point. Each of these memos includes findings that appear to undercut the validity of the refugee EO’s immigration restrictions. Upon closer examination, however, the analysis in both memos is insufficient to affect the deference that the courts will likely give.

The leaked draft DHS citizenship memo was produced in response to a White House request for information supporting its conclusions regarding the necessity of the travel ban. The memo concludes the opposite, arguing instead that noncitizenship status is not a useful indicator of terrorist propensities. However, the memo’s analysis arbitrarily excludes immigrants who arrived in the U.S. and then sought to travel abroad to fight for a foreign terrorist group such as ISIS or Somalia’s Al Shabab. The memo is correct that rates for terrorism are thankfully low in absolute terms for both citizens and immigrants, but relies on an artificial distinction between committing violent acts in the U.S. and exporting violence overseas. Since then-Secretary of State Thomas Jefferson warned the French ambassador, Edmond Genet, about the risks of encouraging U.S. citizens to go overseas to fight for revolutionary France, U.S. officials have been wary of individuals who would use the United States as a home base for violence abroad. That risk is just as worrisome today. For example, the Second Circuit Court of Appeals in United States v. Duggan (1984) held that the original Foreign Intelligence Surveillance Act could constitutionally be applied to conduct surveillance on operatives from the Irish Republican Army who sought to export violence from the U.S. to Northern Ireland. The Second Circuit wisely observed that the Constitution made such lethal exports and their effect on U.S. foreign relations as legitimate a subject of government concern as violence occurring within the United States itself.

The second DHS draft memo—on domestic radicalization—considers travel abroad in material support (MST) of foreign terrorist groups, as well as violence within the United States. However, this memo also manipulates statistics. It asserts that most foreign-born perpetrators of terrorism-related offenses, including MST, have been in the U.S. for a significant period of time. It then implies that vetting of foreign nationals applying for visas to the U.S. would not be effective, based on the assumption that radicalization occurs subsequent to admission to the United States. Here again, a closer look at the study’s statistical contortions tells a different tale.

First, according to the memo, approximately 15 percent of the foreign-born individuals studied were actually in the U.S. for under five years when they committed a terrorism-related offense. Over 25 percent entered the U.S. between the ages of 21 and 30, suggesting that their views were already mature. Another third entered between the ages of 11-20. If even one-third of this second group entered between the ages of 16-20, that would mean that fully one-third of all noncitizen perpetrators of terrorism-related offenses entered the U.S. with views that at least approached mature development. As the Supreme Court’s decision in Kerry v. Din (2015) indicated, U.S. consulates abroad currently vet such candidates for visas for the risk of terrorism. The government could reasonably say, given the deference that courts have typically exhibited, that more careful vetting of this group would result in a significant diminution in terrorism-related offenses.

To be sure, such vetting would not result in a 100 percent reduction in violence. However, at least in the fluid realm of foreign affairs, courts have never required that the government choose between a 100 percent reduction and no reduction at all. Furthermore, the second DHS memo’s “homegrown radicalization” thesis hinges on a highly debatable assumption. The memo assumes that the criminal conduct that led to the conviction of individuals with longer sojourns in the U.S. was the first terrorism-related conduct of those individuals. That assumption lacks empirical support. We simply don’t know if some of the individuals convicted of MST engaged in prior conduct that the government did not detect. It’s touching that DHS believes the government is 100 percent effective at apprehending individuals engaged in MST. However, a modest dose of reality-testing suggests that the government misses some terrorism-related conduct. The likelihood that some of the individuals eventually prosecuted evaded government notice for some period of time erodes the memo’s empirical foundations, which were shaky to start.

The above discussion by no means cements the policy case for the EO, even with the revisions just announced. Indeed, I continue to believe that the EO’s surviving restrictions are counterproductive. As Shirin Sinnar expertly discussed here, even the current EO demonizes certain immigrants in a fashion that may turn out to be a self-fulfilling prophecy. The European experience with relegating Muslim immigrants to de facto second class citizenship has yielded a harvest of resentment and violence. The U.S. has largely avoided that grim scenario, and should not risk it now in the name of national security.

My only point here is descriptive: courts have tended to leave those policy judgments to the political branches. The EO’s revisions maximize the prospects for continuing that trend.