But It *Could* Happen

As 135,000 people heard with their own two (or fewer) ears, the government was unable to provide evidence to support its claim that failure to lift the TRO on the travel ban executive order would result in harm. As Josh Blackman notes, as did I as well, the government tried to circumvent the gap.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree.

And all the world rejoiced? But this isn’t about the ban, but the test imposed by the court on government action. While the world may obsess about this one Executive Order, tell anecdotes of sad immigrants harmed to evoke your deepest empathy, it tends not to occur to people that many people suffer harm as a result of government actions, many far worse than here, many with far less reason. That’s why they tell you sad stories, so you melt into an emotional puddle and focus on the shiny harm in front of you rather than put it into a thoughtful context.

But what Josh raises is that the test to which the government was put here, the lack of evidence of a real harm, isn’t the test usually applied.

Why was this standard so stunning, for me at least? Because barely 6 months earlier, the 5th Circuit applied a standard approaching rational basis review to assess whether the executive branch’s actions in the realm of domestic affairs violated the First Amendments rights of U.S. Citizens. I speak, of course, about Defense Distributed v. Department of State, a case for which I am co-counsel.

In that decision, the majority opinion upheld a prior restraint on free speech based solely on the government’s vague assertions that someone, somewhere, could download Defense Distributed’s files, and use them to create a gun, and commit acts of terrorism. Has it ever happened before? No. But the risk that it could happen is sufficient to violate the First Amendment.

This test, officially the rational basis test as opposed to strict scrutiny, is that it could happen. It’s what I refer to when I respond to comments with “space aliens,” because they could exist even though there is no evidence to prove they do. Granted, my snarky argument doesn’t actually achieve rational basis, but it’s an argument born of hyperbole to attempt to make the point that we can rationalize almost anything if we’re willing to stretch reason far enough.

And in light of the test applied by the Ninth Circuit in Washington v. Trump, Josh, et al., “alerted” the court as to this fundamental change in law.

In light of the “no evidence” standard imposed in Washington v. Trump, our legal team deemed it appropriate to alert the Fifth Circuit of this new authority. Through our 28(j) letter, we articulated the fact that if the quasi-rights of non-citizens can only be violated by showing actual evidence that such aliens have committed acts of terrorism, then certainly the constitutional rights of U.S. citizens cannot be violated by allegations to vague and unspecified threats.

The government must submit evidence that a foreigner has in fact downloaded the files, and used them to engage in an act of violence against American interests. Anything less would not be sufficient to meet this standard. (Cutting to the chase, no such crime has ever been committed; that is why the prior restraint is bunk).

There is an unpleasant reality that permeates this point, and inexplicably fails to make it past the sad feelz based on sad tales of harm to perfectly wonderful people as a result of Trump’s travel ban. Most of those impacted are not American citizens. Separating out the green card holders, legal permanent residents, who were absurdly included at first, then ineptly excepted after, the concern for due process rights under the United States Constitution came from non-United States Citizens who were either on foreign soil or, per the odd technicalities of United States border law, had not entered the United States.

All of which raises the hard question: do foreigners get greater protection under the United States Constitution than United States Citizens on American soil?

This isn’t an argument about being mean to foreigners, or xenophobia, even though advocates for aliens would prefer it be cast that way. It’s an argument addressing the deprivation of rights to United States Citizens under a test that’s far less rigorous than that applied to others. Josh’s letter spelled this out:

Of course, noncitizens have no constitutional right to enter the United States. Yet in Washington, the purported harm to public universities in being temporarily denied association with people from Iran, Iraq, Somalia, Libya, Yemen, Syria and Sudan outweighed the President’s national security concerns about the current level of vetting for such nationals.

Here, the Government is plainly infringing on the fundamental First Amendment speech rights of American citizens—also based on nothing more than the assertion of a public interest. Universities, public and private, have also objected to the challenged prior restraint.

No matter how strongly you feel that your vague notions of “human dignity” trump the Constitution, it wasn’t the rights of unnamed people in Somalia or Yemen that were being vindicated by the Ninth Circuit’s decision, but the rights of the State of Washington based upon allegations of harm to its universities, inter alia, by being denied academics and students from these countries. If that’s a real harm, and it is, then it’s also a real harm to universities in Josh’s case.

The difference is that in Washington v. Trump, the court refused to accept the rhetorical possibility of harm and demanded evidence. In Josh’s case, the court was totally satisfied when the government yelled “space aliens” as a justification for the deprivation of constitutional rights to United States Citizens. There are many things in the world that could happen. but either that’s good enough to deny constitutional rights or it’s not.

And the irony here is that the sad victims of the constitutional deprivations in the travel ban case aren’t entitled to rights. Josh’s victims, on the other hand, are, but nobody held protest signs or emoted all over the floor when their rights were denied.


5 thoughts on “But It *Could* Happen

  1. Tom H.

    “but nobody held protest signs…”
    Nobody did? I’d post the links but I know that is verboten. Lets just say that people did (you could even say that they were printing their protest signs right on the steps of the Texas capitol). I concede that not as many as had the sad feelz for the foreigners but to say that nobody did is slightly disingenuous.

    1. SHG Post author

      Well then, I guess you lost fair and square and the denial was warranted. You win by losing. Smart move pointing this critical detail out.

  2. Rick Horowitz

    I’ve never understood the arguments that the government has power to do things to non-citizens, which it did not have against citizens. Everytime I actually read the Constitution, it just seems that certain powers are given the government, and others are not there. Some (as in the so-called Bill of Rights) seem to be outright denied to the government, without designating that they were only denied when the government was dealing with citizens.

    And I definitely don’t see anything that says if the government can imagine a possible univers in which certain things it doesn’t like could happen, it gets to take to itself even more power.

  3. Ross

    Yes, it’s a link, but this seems appropriate for the standard proposed by the Feds and agreed to by the 5th

  4. Agammamon

    :. . . the Government has taken the position that we must not review its decision at all.”

    Its kind of amazing how often the government takes this stance. I kind of wonder what they think the courts are for.

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