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.
After eight years of the Obama administration picking and choosing which laws to enforce and showing contempt for congressional oversight, the time has come for the new Congress and U.S. Department of Justice to stand up for the rule of law.
Congress is a co-equal branch of the federal government and is charged with oversight responsibilities in our nation’s system of checks and balances. Congressman Lamar Smith, Chairman of the House Science, Space and Technology Committee, has issued subpoenas to State Attorneys General Eric Schneiderman (N.Y.) and Maura Healey (Mass.) for records relating to their “Green 20” climate change campaign.
Green 20 is a coordinated campaign between professional environmental activists and 20 state attorney generals, who claim to be investigating whether ExxonMobil and other energy firms have committed fraud on the public by suppressing key climate change science. Schneiderman and Healy are spearheading the effort.
Chairman Smith and his committee are concerned that the Green 20 are abusing their prosecutorial powers for political purposes. He believes the group may be engaged in “political theater” that “run(s) counter to an attorney general’s duty to serve ‘as the guardian of the legal rights of the citizens.’”
Schneiderman and Healey have publicly announced that their offices will not comply with the committee’s subpoenas.
This matter is an ideal test case, pitting Congress and the Justice Department against two attorneys general trying to win points with their political base. Schneiderman and Healy are both grandstanding ideologues who appear to be misusing the powers of their offices to target political opponents and silence the speech of climate change critics. Where civil rights and the First Amendment are at issue Congress has every right to investigate.
If the two continue their defiance and fail to produce records, Chairman Smith should hold a new hearing on the attorneys’ general failure to comply with the subpoenas. If both continue to refuse to comply, the committee should vote to hold both Schneiderman and Healy in contempt of Congress. House Speaker Paul Ryan should waste no time in scheduling a vote on the floor of the U.S. House.
If the House votes in favor of contempt, a criminal referral should be sent to Attorney General Jeff Sessions asking him to prosecute both attorneys general for not complying with a lawfully issued congressional subpoena. Congressional subpoenas of course are not optional and allowing a policy of non-enforcement of certain subpoenas is a slippery slope that will set a dangerous precedent for future oversight investigations.
Throughout President Obama’s tenure in the White House, the lack of respect shown by his administration for congressional oversight, subpoenas, and Freedom of Information Act requests was nothing short of stunning. Whether it was Operation Fast and Furious, Benghazi, or political targeting at the Internal Revenue Service, congressional investigations were stonewalled and the mainstream media sat idly by. And when it was time for Congress to do their duty and finally impeach IRS Commissioner John Koskinen, they failed to step up.
What happens with the Science Committee’s subpoenas will be an early test for the new Congress and the new leadership at the Justice Department. If the rule of law is truly back in America, Congress must step up as a co-equal branch of government with constitutionally mandated oversight responsibilities and take action. Moreover, the Justice Department must treat contempt of Congress charges and non-compliance with subpoenas with the seriousness they deserve if our system of checks and balances is to work properly.
Only time will tell.
David N. Bossie is president of Citizens United and President Trump’s former Deputy Campaign Manager. Bossie previously served as Chief Investigator for U.S. House Committee on Government Reform and Oversight.
Citizens United and Citizens United Foundation joined with several other conservative organizations in filing an amicus brief with the 9th Circuit U.S. Court of Appeals asking the court to empanel an 11 judge en banc panel to rehear arguments on reinstating President Trump’s immigration order.
President Trump’s detractors are bent on forcing him into a fire sale of his vast business empire, arguing his ownership of various assets violates the Foreign Emoluments Clause of the U.S. Constitution. That clause prohibits federal officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State.” The Framers considered an “emolument” as something similar to a perk associated with the performance of official duties. An automobile given by a head of state to the ambassador from the U.S. would be a classic example of an emolument prohibited by the clause.
Just three days after President Trump was sworn into office, the liberal activist group Citizens for Responsibility and Ethics in Washington (“CREW”) filed a lawsuit demanding the courts force him to divest the bulk of his business holdings. The complaint alleges Mr. Trump’s ownership of real estate assets such as The Trump Tower in New York and Trump International Hotel in Washington, DC, and his receipt of royalties from the Television program “The Apprentice” qualify as emoluments that create conflicts of interests making him beholden to foreign governments.
The unprecedented legal theory of the case is that President Trump’s properties generate at least some receipts from foreign officials and governments, meaning some of those receipts will eventually find their way into Mr. Trump’s pocket as profits. Consequently, according to the lawsuit, the Emoluments Clause bars him from owning those assets because his judgment as President may be compromised by the profits he receives from foreign payments to his companies.