Im-Politic: Trump Derangement Syndrome Breaking Out on the Supreme Court?

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Balkan wars, Bosnia, citizenship, deportation, Im-Politic, Immigration, Immigration and Citizenship Services, John Roberts, Muslims, naturalization, refugees, Reuters, Serbs, Srebrenica, Stephen Breyer, Supreme Court, Trump

Question: When is serving in a military unit that’s committed horrendous war crimes the legal equivalent of getting a speeding ticket? Or absentmindedly bringing a key-chain pen knife into a government office building? Or maybe even jaywalking? Answer: When the U.S. Supreme Court nowadays is evaluating an immigration case.

Think I’m kidding? Then check out this Reuters account of a hearing held by the high court that dealt with an immigrant from Bosnia who was deported and stripped of her citizenship last October. The reason? She had lied on her application to enter the country as a refugee. Now, Divna Maslenjak is seeking to restore the status quo ante. And according to the Reuters piece, several Justices are concerned that in defending the U.S. government’s previous decision (made, mind you, under the Obama administration), President Trump’s Justice Department is laying the groundwork for revoking citizenship for false statements that had no significant influence on the original refugee decision.

Nothing intrinsically wrong with that. Everyone, for example, forgets things or gets details confused. These lapses are particularly understandable in the chaotic conditions with which most refugees struggle. Nor could any reasonable person quibble with Chief Justice John Roberts concern that the Trump administration position (even though it’s drawn straight from the U.S. Citizenship and Immigration Services’ naturalization form) could enable the government to strip citizenship from naturalized Americans for lying or for omitting information about minor legal infractions that even the most scrupulously law-abiding folks everywhere are hard-pressed to avoid completely.

As Roberts noted, “in the past he has exceeded the speed limit while driving. If immigrants failed to disclose that on a citizenship application form asking them to list any instances of breaking the law, they could later lose their citizenship, the conservative chief justice said. ‘Now you say that if I answer that question ‘no,’ 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all?'”

Associate Justice Stephen Breyer, who is viewed as considerably more liberal than Roberts, agreed, “noting he had once walked into a government building with a pocketknife on his key chain in violation of the law.”

Added Breyer: “It’s, to me, rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw Into doubt the citizenship of vast percentages of all naturalized citizens.”

Fair enough. But the lie in question did not concern a speeding ticket or an innocent failure to check the contents of one’s pockets. Nor did it concern an intrinsically legal but possibly questionable act that had no important bearing on Maslenjak’s application for refugee status. In fact, it concerned a subject central to her request: Despite telling the government that, as ethnic Serbs, she and her family feared ethnic persecution by Bosnia’s Muslims, she never mentioned that, as the Reuters article reports, her husband (who had received refugee status when she did) served “in a Bosnian Serb Army brigade that participated in the notorious 1995 massacre of 8,000 Muslims in the Bosnian town of Srebrenica.” And P.S.: He lied about the matter as well.

Now it’s possible that the husband was completely uninvolved in this, or any other, atrocity (another subject about which the naturalization form inquires). It’s also possible that, whether he was complicit or not, that’s what Divna, his wife, believed. Or he simply could have lied to her. If he was innocent, he might have been afraid that the relevant American authorities simply would not have believed him. Certainly, no one could blame inhabitants of countries ruled by oppressive and/or corrupt governments for not trusting U.S. officials right off the bat.

But apparently, neither spouse has offered any such excuses. Nor did any of the Justices apparently mention them. Both the Maslenjaks and Roberts and Breyer (and possibly some of their colleagues) seem to be focused on technicalities – and perhaps the former and their lawyers are counting on the Trump administration’s “anti-immigrant” reputation and the resulting backlash to help sway the Court.

The Justices’ final decision isn’t due until late June. It could be a great test of whether they, like so much of the rest of the country, have succumbed to Trump Derangement Syndrome.

Following Up: That Latest (Disgraceful) Court Decision on Trump’s Immigration Order

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Congress, Constitution, due process, Elena Kagan, executive order, Following Up, Immigration, Muslim ban, national security, presidency, refugees, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, Supreme Court, terrorism, travel ban, Trump, U.S. Court of Appeals Ninth Circuit, visas, Washington State

The decision last Thursday by a federal appeals court to uphold blockage of President Trump’s recent Executive Order on immigration and refugee policy exemplified the challenge I noted when I started blogging here at RealityChek: “So much nonsense out there, so little time….” Just as I often struggle each day to decide which outrage in the public policy world against fact-based, adult thinking should be addressed, I’ve struggled to decide which sad excuses for a legal argument made by three appellate judges in the Ninth Circuit to focus on in this post.

But two groups of contentions stand out as especially dangerous and disingenuous. Both decisively influenced the judges’ determination to keep the Executive Order from being enforced on procedural grounds pending a further judicial decision on the merits of the case.

The first is the panel’s unanimous ruling on how much due process to protect Constitutionally guaranteed rights is legally deserved by foreigners outside America’s borders who have not been awarded legal resident status. That is, how many boxes do the relevant U.S. officials need to check in order to reach a legally valid decision to deny a refugee applicant admission? In these refugee cases, the Supreme Court has held that the only such obligation is providing a “facially legitimate and bona fide” reason for a judgment reached by a State Department consular officer.

The Ninth Circuit panel, however, claims that this standard (and the already established appeals process) is insufficient when refugee applicants “have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” And it has ruled that the Trump Executive Order failed to meet this standard.

Even leaving aside the convincing argument that existing law denies judges jurisdiction over immigration policy (which the panel rejected in a “preliminary” sense), just consider the precedent this conclusion would set. It would mean that unless a terrorist connection could be proved conclusively, a suspected ISIS fighter or adherent who applies for refugee or other immigration status from Iraq or Yemen or wherever could be entitled to enter the United States if he or she was a relative of a non-citizen legal U.S. resident. What would conclusive proof be? Heaven knows, since the case referenced by the Ninth Circuit panel only alleged that the rejection in question wasn’t sufficiently “detailed.” And who would decide how much detail is enough? Perhaps a U.S. court? Perhaps after looking over intelligence findings that are often unavoidably judgment calls? It’s hard to imagine a better way to start turning making a sieve of screening procedures vital in an age of transnational terrorism for protecting national security.

Think I’m kidding? Here are the actual circumstances of the immigration denial decision that the Ninth Circuit apparently finds so objectionable (and which was upheld in 2014 by the Supreme Court): An Afghan-born legal resident of the United States petitioned for her husband’s entry from Afghanistan, and asserted he deserved “priority (and judicially reviewable) status” like other “immediate relatives.”

And the basis for her claim that this application was unjustly turned down – i.e., that her petition was denied due process because the rationale wasn’t sufficiently detailed? A consular official told her husband that he would be kept out of America because by his own admission, he had been an official in Afghanistan’s former Taliban government, and that U.S. law aims to exclude foreigners who have engaged in “terrorist activities” – a description that certainly applies to the Taliban.

It gets better: The federal court that did decide that a former admitted Taliban official’s application deserved (unspecified) further consideration, which resulted in the case being appealed to the Supreme Court? It was the Ninth Circuit. And four Supreme Court Justices (Stephen Breyer, who wrote a dissent, and Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who joined with him) agreed.

The second especially disturbing aspect of the appellate court’s decision was the panel’s claim that it had, in accordance with “an uncontroversial principle that is well-grounded in our jurisprudence,” paid “substantial deference to the immigration and national security policy determinations of the political branches” – that is, the presidency and the Congress. The only such deference apparent in this decision is at the level of brazen tokenism.

Specifically, the three judges claimed to agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order.” But they also stated that the judiciary has a responsibility to balance this interest with other legitimate considerations, namely the public’s interest in “free flow of travel, in avoiding separation of families, and in freedom from discrimination.”

The “freedom from discrimination” threat of course pertains to repeated charges – also made in court by plaintiff Washington State – that the Executive Order’s refugee provisions create a “Muslim ban.” The Order’s failure to include most countries with Muslim majorities renders that charge inexplicable. Moreover, as my previous post observed, religious persecution is one of the forms of persecution that must be demonstrated by successful refugee applicants. But what’s simply jaw-dropping is the nature of the specific balancing act the appellate court identified involving national security concerns on the one hand, and freedom of travel and keeping families together on the other.

Because here’s what the three-judge panel asserted could nullify national security judgments made by the president and Congress (in the 2015 law identifying the seven countries subjected to the travel ban as “countries of concern” requiring special screening). And P.S.: It’s also what the judges agreed (in line with claims by Washington State and Minnesota) constituted enough “damage” to the State’s “economy and public universities” even to rise to the level of adjudicability in the context of immigration policy:

>”two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States”:

>”three prospective employees from countries covered by the Executive Order for visas [for whom the University of Washington] had made plans [to arrive] beginning in February 2017”;

>”two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington”; and

>”an unspecified number of “students and faculty at Minnesota’s public universities [who] were similarly restricted from traveling for academic and personal reasons.”

If this is a balancing act, it’s one with a heavy Ninth Circuit thumb giving critical mass to laughably marginal considerations – even assuming that any of these temporarily inconvenienced students and teachers have any preexisting right to crossing American borders.

It’s true that lawyers and judges often insist that “no issue is decided finally until it is decided correctly.” But the Trump Executive Order’s treatment so far in the judiciary, and the current make-up of the Supreme Court, tell me that national security could suffer greatly until this result is finally reached.