Aziz Huq and Earl Maltz, "The Travel Ban: A Debate"
Aziz Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School, where he teaches constitutional law, criminal procedure, federal courts, and legislation. His scholarship concerns the interaction of constitutional design with individual rights and liberties. Before joining the Law School faculty, Prof. Huq worked as Associate Counsel and then Director of the Liberty and National Security Project of the Brennan Center for Justice at NYU School of Law, litigating cases in both the US Courts of Appeals and the Supreme Court. He was also a Senior Consultant Analyst for the International Crisis Group, researching constitutional design and implementation in Pakistan, Nepal, Afghanistan, and Sri Lanka. He clerked for Judge Robert D. Sack of the US Court of Appeals for the Second Circuit and then for Justice Ruth Bader Ginsburg of the Supreme Court of the United States. He is also a 1996 summa cum laude graduate of the University of North Carolina at Chapel Hill, and a 2001 graduate of Columbia Law School, where he was awarded the John Ordronaux Prize.
Earl M. Maltz is a Distinguished Professor of Law at Rutgers University. He is the author of Rethinking Constitutional Law: Originalism, Interventionism, and the Politics of Judicial Review (1994), Civil Rights, The Constitution and Congress, 1863-1865 (1990), and over 50 articles on constitutional law, statutory interpretation, the role of the courts, and legal history. He received his B.A. from Northwestern University, where he was elected to Phi Beta Kappa, and his J.D. cum laude from Harvard. Professor Maltz teaches Constitutional Law, Employment Discrimination, Conflicts of Law, and a seminar on the Supreme Court.
Presented by the Muslim Law Students Association, American Constitution Society, Black Law Students Association, Latino/a Law Students Association, International Law Society, Human Rights Law Society, and the Federalist Society on November 8, 2017.
Transcript
Speaker 1 (00:00:02):
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Aziz Z. Huq (00:00:22):
So let me, let me start off by thanking all of the student groups that have organized this event and Professor Maltz for traveling to Chicago. I will apologize also if I either sit down or end up leaning against the table, I will do this because my back is messed up by having school kids. Let me say a couple of things. Let me start off by saying somethig about the scope of the comments that I will make. Let me start off by saying something about the scope of my comments and the issues that I hope to address and they are issues that Professor Maltz sent me a couple of emails saying he was interested in addressing and I can try to focus on those issues. They're all three different iterations of what is called the travel ban dating from January, March and September of this year.
Aziz Z. Huq (00:01:34):
Those great inspirations for the travel ban are different in a number of ways. There are specific provisions have different scopes, the duration of each of the travel bans have been subtly different and the nature of the findings that are offered in the text of the ban are distinct. Accordingly it is a challenge to identify and to address discreetly all of the various legal questions that, all the permutations of legal questions, that arise under the three bans. What I propose to do is to identify what I see as the core constitutional questions implicated by all three measures and to articulate something of an account of one view on those constitutional questions. Two caveats though are necessary before engaging in that topic: the first is that the flattening of differences between the various versions of the ban come with some analytic costs, right?
Aziz Z. Huq (00:03:11):
You lose something by abstracting away from the particulars of each measure and thinking about the core constitutional question raised by the central prohibition extended in various ways within each of the three. So I'll give you one example of an element of one of the freedoms that I think is important that one loses sight of in taking the approach that I take to frame this. The first iteration of the travel ban as imposed in January of this year, January 27th, promulgated on a Friday and implemented that day was one prominent feature of that iteration of the ban was that it applied immediately and it applied not just to non-citizens who were seeking or possessed a visa, whether it be an immigrant visa or non immigrant visa, but also to people who possess the lawful rights to reside permanently in the United States.
Aziz Z. Huq (00:04:23):
So people who were lawful permanent residents of the United States on the Friday upon which the first travel ban was implemented, if they were outside the country or if they were in the air, traveling back to the country, found themselves without a legal right to reside in the country where in many cases they had resided for years for decades, right? The question of the application off the travel ban for lawful permanent residents, to my mind, raises distinct and separate questions of due process and the separation of powers to a top location and over recall. I'm not going to talk about those due process and separation of powers questions. And to the extent the lawful permanent residents application is salient to the analysis that I will give-- it is salient in as much as it is relevant in understanding whether the measure imposing the travel ban was, or is, congruent to the policy needs which it allegedly responds in a fashion that passes constitutional possibility. That's the first caveat: details will be lost.
Aziz Z. Huq (00:05:46):
The second caveat: the question, whether a measure is constitutional is not the same as the question whether a call will invalidate it. Those of you who have taken Constitutional Law I, will know that there are doctrines light of till three, just disability rules, a standard and rightness. We'll know it got pretty fight for political question. Those of you who will take or have taken Federal Court will know that there are a range of other doctrines-- absolute immunity, qualified immunity, state sovereign immunity, that extend and preclude judicial review in a certain domain of places. No judge that I know of, who is a participant to the American constitutional system, believes that the scope all constitutional rules is exhausted by the a range of applications of law the court is willing to uphold or invalidate in a properly filed statement. The question of constitutionality, that is, is distinct and different from the question of what a court will strike.
Aziz Z. Huq (00:07:13):
Now, there are two particular regards in which that distinction fights in this case; there are two doctrines that have featured in all iterations of litigation over the travel ban that are doctrines pertaining to limits on what federal courts can properly say rather than doctrines that pertain to what the federal government can properly do. One is called the doctrine of consular non reviewability. And this is the idea that there are certain immigration decisions that are beyond the camp of federal court. I would also argue that a related doctrine called the plenary power doctrine is a doctrine of judicial restraint, rather than a doctrine of a substantive constitutional law although that is a debatable proposition. There is further an extensive debate within the courts about whether certain kinds of evidence, in particular, pre-inauguration statements by the president, can be employed by a court in the context of constitutional adjudication.
Aziz Z. Huq (00:08:33):
Those two questions, consular non reviewability, the availability to counter that statement as evidence of unconstitutional motivation, I think very important questions, but they pertain to the scope or the extent of consequences of a review in federal court. I'm happy to talk about those questions later, but I think they are distinct from the question of constitutionality. And the question that constitutionality totally gains in importance to officials and to citizens and to lawyers and for lawyers in training-- if you think that an issue is not going to be fully aired because of just disability constraints in the federal courts. So the issue that I'm most focused on is not what the courts will do, but what constitutional merits of challenges to the core prohibition in the travel ban look like. So what is the core prohibition? And what are the, I think there are two, constitutional arguments against it.
Aziz Z. Huq (00:09:44):
The core prohibition in the travel ban's three iterations is some version of a prescription of entry on the parts of non citizens who either are seeking a nonimmigrant visa, that is a visa to visit, or an immigrant visa, which is a visa to remain in the United States for some duration of time, a prescription on non immigrants and immigrant and visa issuance and the entry, the orders that are tolerably clear that visas will not be issued as well as entry being prohibited with respect to an evolving list of countries that, that at their core, have included a series of Muslim majority countries, right? That is what I take to be the core operative effect of the travel ban. And that's what I want to focus upon in terms of thinking about the constitutionality. And having identified that as a topic or an object of government regulation,
Aziz Z. Huq (00:10:57):
One can ask what is it in the constitution that might bear on that, right? I want to offer two potential grounds for thinking that this core prohibition has constitutional problems and I will not talk much about the first one, although I'm happy to talk more in the Q&A. The first one is the separation of powers. Canonical separation of powers caselaw dating back to a case that is colloquially known as the steel seizure case, a 1952 case involving the government's decision to to seize steel mills in the midst of a labor dispute in the context of the Korean war in order to maintain the production of steel that was seen by the Truman administration as necessary to the Korean war effort. Canonical Supreme Court caselaw, from the steel seizure case onwards, directs that when the president takes a coercive action in relation to people in the world, the president must have either authorization under Article Two of the constitution or authorization under a federal statute.
Aziz Z. Huq (00:12:23):
Now, the separation of powers question with respect to the travel ban arises in the form of a challenge to the quantum of statutory authority that the president has with respect to border entries. There is a very complicated part of the federal code-- Title eight of of the U.S. Code-- that sets four regulations for both immigration and naturalization. And there is a provision in the U.S. Code that entitles the president to prevent the entry of any alien or group of aliens provided that the certain findings are made, right? The separation of powers question is raised by the challenges made by various petitioners or various plaintiffs, most powerfully by the state of Hawaii, to the effect that the scope of authority granted under this statute does not extend to this case, right?
Aziz Z. Huq (00:13:34):
Professor Maltz has asked me not to address the statutory questions, but I'm happy to talk about the arguments with relation to the scope of statutory authority that is available to the president under Title Eight of the U.S. Code. Both internal to the provision that I identified and as a consequence of interactions between that provision and subsequently enacted prohibitions in the U.S. Code on the use of nationality as a criteria for per se restrictions upon entry into the United States, right? That's a set of statutory arguments, right? And how those documents are resolved, depends upon how one reads the relevant provisions, how one reads the caselaw from Youngstown on through cases such as Dames & Moore which some of you will know about up to more recent war on terror cases.
Aziz Z. Huq (00:14:38):
But, but all of those statutory arguments are really occurring in the shadow of the separation of powers, because at the end of the day, the unlawfulness of the given action is a function of our separation of powers system's allocation of authority between the president and congress, right? So that, that I think is an important part of the case. It may well be that dispositive parts of the case if the Supreme court ever rules on the merits of a challenge to the travel ban. I take that the issue that I think Professor Maltz wanted me to focus upon and the issue that I think is of interest to the general public, perhaps as much as or more than the rather reticulated statutory question raised by the separation of powers doctrine is the question of whether the measure is, is constitutional on the first and the fifth amendment, right?
Aziz Z. Huq (00:15:43):
And I think what I need to do in order to play that out is to explain to you what the arguments are for thinking that there is a problem under the first or the fifth amendment and explaining how that problem attaches to the prohibitions in question in the trial. So the first and the fifth amendment of the federal constitution, both of which directly apply to the federal government, come into operations in at least three distinct ways. The first way is through the establishment clause. The establishment clause as it has been understood by the Supreme court for almost a century now, prohibits actions that install preference for one religious faith over another. I'll give you an example: in a 2014 case called Town of Greece vs. Galloway, a case that involved non sectarian blessings like the one that I just gave [audience laughs] before a town meeting, right? The court upheld the practice of having Christian and only Christian ministers deliver a blessing at the beginning of the town meeting on the ground that there was no evidence that the town had excluded or limited with the prayer opportunity to to other faiths. So in his concurrent, Justice Alito, that well known Uber liberal, said if there were evidence in the record of this case that synagogues have been excluded by the town, then there would be an establishment close violation demonstrates, right? That's the establishment clause, no preferences, right? And this line about no preferences goes back to cases from the 1970s, the most important of which is a Minnesota taxation case that I know all of you know well.
Aziz Z. Huq (00:18:13):
So that's the first one. The second principle is the free exercise clause. The free exercise clause prevents the government from imposing penalties upon a group on the basis of their religion. So a good example of a free exercise violation is a Florida municipality passed the statute, an ordinance, that prohibited animal sacrifices. The statute contained a long list of exceptions. That pretty much covered every instance in which you or I might sacrifice a chicken, except if we were to do it for the purpose of ritual sacrifice as members of the Santeria faith. In the absence of any textual evidence on the face of the law that this was a measure that meant to pick out one faith for a particular penalty or prohibition that was not extended or applied to others, the court invalidated this ordinance on the ground that it, and I will, and I will quote, "had the object to infringe upon or restrict practices because of their religious origin."
Aziz Z. Huq (00:19:37):
The third relevant clause is the equal protection clause, that's not in the 1st or the 14th amendment, some members of the audience will say. That's true, no formal equality language in the constitution directly applies to the federal government. However, since 1954, at a case called Bolling v. Sharpe which concerns the use of racial segregation in schools in the district of Columbia-- public schools that are run by the federal government-- the court has reverse incorporated the principles of the 14th amendment's equality provision into the 5th amendment's due process clause and applied the tasks against the federal government. This is why when the federal government installs an affirmative action program with respect to, let's say a contract a seller signs, that a program is subject to a quality review in terms of similar to those that apply when the States has. What does the, the equal protection clause allow or require? Well, the equal protection clause, at least since the early 1970s has been understood to have a number of different implications, two of which are salient here.
Aziz Z. Huq (00:21:10):
Even in the absence of a group classification that is a thought to trigger a special concern under the equal protection clause, a law or measure that is based upon a term that the court does not crisply define is unlawful under the equal protection clause, right? The bare desire to harm a group cannot be a legitimate basis for document action in our constitutional system. Second and somewhat related, where a measure is predicated upon what's called a suspect classification, race and religion are two standard group classifications that are seen as raising particular concern under the legal protection clause. Where a measure is predicated on race or religion, the court has applied something like strict scrutiny test. This is a kind of means and rationality, right? The court has asked, is this measure appropriately, usually narrowly, tailored to meet a compelling government interest.
Aziz Z. Huq (00:22:36):
It's important to note that the close scrutiny of a manager is not dependent upon the fact that race or religion appears on the face of the map. So the best example of this is in the gerrymandering context, right? No one draws a legislative district with the words "black people here" around the corner. Racial gerrymandering is subject to close constitutional review, not the cause of the facial contact of the measure, but because the court treats government action animated by a suspect classification where the suspect classification plays a role in the reasoning of the government decision making, as being subject to close means and scrutiny, right? So those are the provisions of the federal constitution that are, I think, in play, right.
Aziz Z. Huq (00:23:55):
Let me say a little bit about how they apply or might apply to the to the actual travel ban itself. I tried to give you a landscape of the general jurisprudence, okay. To start out with, I think it's important to find there is, there is no real dispute that the measure applies to individuals who hold constitutional rights, right? The measure applies to people who have family members who are located overseas and who wish to exercise their rights under the immigration code to obtain visas for those family members. And there is long standing jurisprudence that says, these are individuals who have an entitlement to sue when they are unable to exercise their their rights under the federal immigration statute to obtain a benefit for a mother, a father, a son, a spouse, et cetera. There's no question that there are people who are covered by the federal constitution, who are subject to and who are effected by the ban. And there is no real question that the manner in which they are affected is constitutionally salient, right?
Aziz Z. Huq (00:25:23):
There is also no real question that when someone goes into court and challenges a government action on the basis of an alleged constitutional flaw in the governmental action, that courts may, at least in certain circumstances, invalidate that action on the ground that other applications or other or on some ground, other than the fact that the individual person who is filing suit that has had a constitutional right violated, sorry, that's a little round the houses. Let me explain what that means. There is no doubt that if you or I are subject to a law that violates an element of the separation of powers or an element of constitutional federalism, that we can go into court and say that law should apply to us, right? The federal, the U S Supreme court in a case called bond USB bond a few years ago, underscored that proposition.
Aziz Z. Huq (00:26:39):
There is no doubt that structural elements of the constitution can be enforced by individuals even if they are not the parts of the constitutional institutional structure that holds a right on the federal or separate impounds. There is more unclear case law of harm, or it is, it is a closer question of whether somebody can come into court and say, this other individual person's rights have been violated by the statute that is now being applied to me. I'm not sure that this is one of those cases, but just note that that the kind of things, the reasons that one can give for seeking to have a statute invalidated, the kind of flaws that can be found in the statute, are not limited to their own personal experience. So with that in mind, I think the question of how the three elements of the bill of rights establishment, free exercise, and equal protection, should apply to the case that the travel ban turn out to be questions that are really contingent on how one reads the facts.
Aziz Z. Huq (00:28:00):
Right? So for example, for example there is abundant evidence in the form of statements made by the president, mostly while he was a candidate, that the decision to impose a categorical prescription on certain immigrant and non immigrant visas to be given to people from Muslim majority countries was based upon a generalization about Muslims as a class as being categorically dangerous. So for example, for example, the president while a candidate said, I'm looking for exactly the right terminology. I'm not finding it. Here we go, Oh, these are great, great... Muslims, Muslims. He said well, "With Muslims, there is no assimilation." I think he was thinking of me and my attitude to the Cubs when he said that. And he also said, and this was in the context of his explanation for why the travel ban was warranted. "Muslims have tried to come to take over our children." I have two children. I don't want any more, especially don't want yours.
Aziz Z. Huq (00:29:30):
I'm sorry, I'm making light of it because I find that's the best that I can usually manage with statements about me, but that I find a derogatory of me as a member of a group. These are not the only statements that one could, one could one could look to, but they are, I think, indicative of the fact that the travel ban is a measure that is predicated on a set of beliefs about Muslims and not withstanding his character as a nationality-based prescription. It's justification's flow from a number of claims about Muslims as a class, right? It may be that those claims are, not withstanding my humor about it, are themselves forms of animus, right? As much as when, I think, individuals say things like, well, you know, African Americans, they just commit more crimes, right?
Aziz Z. Huq (00:30:35):
That's that's, that's kind of an, it's a claim about empirical regularities. Although, that's a claim about empirical regularities that I think has laced through the history of American racism in a way that makes it functionally inseparable from anything that you could plausibly call animus. Even if it was the case that one did not take the president's statements as evidence of animus, right? Evidence of a desire to impose a, a penalty upon a class of people because of their religious identity in violation of the free exercise clause, nonetheless, they would be subject to the kind of close tailoring analysis, means ends rationality analysis, that the protection clause requires. And the evidence with respect to the rationality of the travel ban is not terribly strong. I'll close with this comment, there's more to say but I think Professor Maltz, I'm sure will fill us in on better. After the first travel ban was withdrawn, the White House requested analyses from Department of State and the Department of Homeland security with respect to the terrorism risks presented by classes of people covered by the ban. Analyses were produced
Aziz Z. Huq (00:32:07):
but were never made public. The Department of Homeland Security's analysis leaked, the analysis found that nationality including the particular nationalities that are states in the first, second, and third ban are, in no fashion, a reasonable proxy for terrorism related risk. And that to the extent that there is evidence that individuals who migrate to the United States commit acts of terrorism asked that was the case a couple of weeks ago in New York, the evidence shows that their radicalization occurs long after the the fact of the migration. And there's no reason to believe that radicalization rates are different with respect to migrants, I suppose, to non migrants. Indeed, if I can throw in one more fact, a recent study by the Center for Terrorism at George Washington University-- it's a study of terrorism prosecutions-- has demonstrated more than a quarter of terrorism prosecutions involve relatively recent converts. The overwhelming proportion are not migrants in any way, shape or form. Okay. There's lots more to say, but I look forward to hearing from Professor Maltz.
Earl Maltz (00:33:41):
I will try to be brief because I know that people were going to ask questions. So let me first talk about things, I'm going to talk specifically with respect to three points. The first point is the point which professor Huq just described about the rational basis. So I think the report that he refers to misconceives what the-- first, I should say that I'm not expressing any view at all pro or con about the travel bans. And second, I should also say that in the interest of keeping things simple, for variety of reasons, I'm really going to focus primarily on the second travel ban. If you're thinking about one travel ban, okay, it's the first with respect to the rational basis test the issue is not whether people from a particular country or in per se, that is, are people from Yemen, for example, because they are Yemeni more likely to be terrorist.
Earl Maltz (00:34:43):
However, it is true that in each of the countries that are in the travel ban, people who hold similar ideologies to people who have done terrorist acts in this country are very active. So that's enough to make it rational, right? So then you might say, well, why Yemen and why not Iraq, that they took out of the the move from travel ban one to travel ban two. Travel ban one banned Iraq, travel ban two did not, I think that point brings up why it is a bad idea to have judges fool around with this, because what happens is that the reason that Iraq was taken out was that the president presumably, and his people, made the judgment that whatever risks there was, was outweighed by the political damage that would be caused by banning immigration from Iraq.
Earl Maltz (00:35:51):
Right. And by the way, with respect to the first about, would you say, for example, that it is if you took 50,000 random people from Syria, that it was more likely that one or more of them would be, would hold, hold one of these ideologies, then people from say Norway or South Africa or Japan. Okay. And if your answer to that question is yes, then it's rational. Now the question is, well, what about other countries that might have these ideologies? And the answer is that the president is the person charged with making the judgment about making that balance and not picking whatever judge you think about. Because note that if the judges do this, that what will happen is just as people who challenged DACA in tech chose a judge in Texas, people who challenged the travel ban will choose a judge from Hawaii, right?
Earl Maltz (00:36:51):
So there is a problem of institutional concerns there. That's number one. Number two, on the general issue of raising the rate of people in this country who are damaged raising equal protection slash establishment clause slash free exercise claims, those claims are based upon the arguments that it is not in, in a few, in some cases. And I will concede that there might be some individual cases where there is interference with family rights, a person in this country's family rights by not allowing another individual to immigrate in this country. But if you're looking at facial challenges, very many of the challenges are based upon the idea that I, who am damaged, am raising the specter of person in another country who is discriminated against because of his religion, right? That's the form of many of the challenges.
Earl Maltz (00:38:09):
Here's the problem. The problem is that people who are outside the United States, who are non-resident citizens of the United States, who are not within the jurisdictions in the United States, there has not one case in the history of the United States, from the Supreme court, which has held that those people have any protections under the Bill of Rights, not one case. And in fact, there are, this is different from the plenary power argument. In fact, there's a case called Verdugo-Urquidez which specifically says that a nonresident outside of the United States, an alien, a nonresident non-citizen outside of the United States does not have fourth amendment rights at all outside of the United States. Now you say that's horrible. Well, in fact, if one thinks about the sort of underlying rationale for a creating the Constitution and B creating the Bill of Rights, it makes perfect sense. Now we've maybe talked about Boumediene later, but if we do it, we will, and this is why: the Constitution of the United States was created by a group of parties to the constitution who want, who thought that they needed a stronger government.
Earl Maltz (00:39:34):
That's why they created it, not for purposes of helping anyone else creating a stronger government, but some people who were parties to that agreement or potential parties to that agreement said, oh, that stronger. government may be a threat to our interests. And in order to protect their interests, whether it's some part of it is states, part of its individuals, they created the Bill of Rights to protect their interests. And again, it's also completely clear and not withstanding a recent article, that in the late 18th century, nobody thought that laws generally applied that the constitution or laws generally, without any extra territorial impact (that's been changed for citizens), but if they are basing their claim on the idea that person A is damaged, because person B's rights are interfered with, then person B simply doesn't have rights under the Bill of Rights.
Earl Maltz (00:40:45):
That's the second point. Third point, specifically with respect to the establishment clause, and it's very interesting because if you look at the millions and millions of briefs and if you look at the astonishing number of briefs between-- almost all of the briefs who are challenging the travel ban focus on the establishment clause. And the reason they focus on the establishment clause is that they are trying to get out of this problem of people outside. Non-Citizens located outside of the United States, not having individual rights protected by the Bill of Rights. And they argued that the establishment clause is structural rather than creating individual rights. Now, again, in terms of time, I'm not going to even talk about that particular thing. But now I can see that there is, there is language in a lot of cases talking about animus in establishment clause cases.
Earl Maltz (00:41:56):
Okay. However, I think it's important to put the first thing I would ask about this is what religion is being established, as opposed to-- I could see the argument, Oh, people's free exercise is being violated. They are being kept out of the country because they are Muslims. I see that argument. But, what religion is being established? Well, I suppose it is the Jewish, Christian, Atheist, Agnostic, Buddhist, Hindu, Daoist, Baha'i religion. My point is once again, there has never been a case decided by the United States Supreme court, never, which has held that, which has held something unconstitutional because it violates the establishment clause to discriminate against a religion or small group of religions, no cases. Now there is this language about animus, but the language needs to be put into context. The absolute, the source, the, the sort of progenitor of the language about animus is a case called Lemon versus Kurtzman from 1971, where the court talks about that in order to say that something does not violate the establishment clause,
Earl Maltz (00:43:25):
it has to have a secular purpose, a secular primary effect, and there has to be a lack of religious entanglement. That sounds like a reference to animus, generally. However, right before that, this is what the court says is the core of establishment clause analysis-- say in the absence of previously stated prostitution prohibitions, we draw lines with reference to the three main evils against which the establishment clause was intended to afford protection, sponsorship, financial support, and active involvement of the sovereign in religious activities. Well, how does the, this inquiry into animus fit into there? The inquiry into animus occurs
Earl Maltz (00:44:12):
in cases where, and Galloway is a classic example, you might otherwise think there was government sponsorship, financial support, or active involvement. Lemmon versus Kurtzman: financial support. Galloway is a sponsorship, right? Government sponsoring religious prayer. Government responds by saying, well, it's not really, we're not intending to establish any particular religion by doing this, that it's sort of a generalized recognition of God or whatever at that point, they say, if you show that there's, Anamis against another religion that undercuts your argument about secular purpose of things, which are on their face sponsorship, financial involvement, or active involvement of the sovereign in religious activities. So, as I say, there has never been any case from the Supreme court, which says, oh, it violates the establishment clause to discriminate against a particular religion, per se. In the Lukumi case, they said, that's a free exercise problem.
Earl Maltz (00:45:27):
And the problem with it being a free exercise problem. And the reason that the briefs don't talk about it as a free exercise problem is that they run into this problem of aliens located outside the jurisdiction of the United States, not having individual rights protected by the Bill of Rights. Now there's a lot more that could be said. I could talk about the sep- I do, I agree with you that the separation of powers issue is almost indistinguishable from the issue of interpretation of 1182F, which gives very broad, which on its face gives very broad power to the president. But I think that in the interest of giving time for questions, I think I will stop there. [audience applauds]
Earl Maltz (00:46:19):
Nice meet you. That's we need a, we need a moderator or- Okay. Or, I'll be the moderator.
Audience Member 1 (00:46:25):
So you started off by explaining a little bit of the reasoning that you felt behind the rationale for the ban saying that if you took one out of 50,000 series, there was, you know, more of a chance that they can be dangerous and a competitor to Norway, but you seem to be missing the fact that the reason why there's a problem is because you're only choosing Syria because of the religion of its inhabitants. So applying that logic, would you be okay with considering the fact that since 1982, 54% of mass shootings in America have been conducted by white men? So could we ban all white men from buying guns or potentially ban them from coming into the country for the safety of, you know, the rest of the citizens?
Earl Maltz (00:47:04):
The question is whether this is rational at this point, and those of you have taken, I assume most of you have taken constitutional. Yeah. Say that rationality is it's a relatively low burden, right? And it's not- the countries that were chosen in this, this group. Although I would, you know, I'm not going to say that the question of Islam generally or the president's attitude toward Islam generally didn't have any impact on that. I wouldn't. But so the people in this particular group, there are active- the problem, I'm trying to figure out a way to say this without sounding whatever, but there, there are there are active elements of having a particular perspective on Islam and all of that, these groups.
Audience Member 1 (00:48:17):
So there's inherent being something inherent to being Muslim.
Earl Maltz (00:48:19):
No, not inherent being Muslim. I mean to, to use the boogeyman, ISIS, for analogies to ISIS, I wouldn't say most people who were Muslim. I suspect, I believe that most people who are Muslim [inaudible] what all the rest of us on, actually, but there is a group of people who happened to be Muslims, who in the name of Islam are acting violently, right?
Speaker 5 (00:48:54):
And it also is true that people who had similar perspectives have been responsible for terrorist acts in this country. So the question about whether something is rational or not-- the question about whether something is good policy is different from the question of whether something is rational or not. So is it rational to say that countries where there is an apparent, larger representation of this particular strain of, I don't even want to, you know, if I might say it's a strain of Islam, this particular ideology, is it, is there some correlation between that and danger from immigrants to that country, to this country? Yes. The question is whether that amount of danger, but that's different from the question, whether that whatever that marginal increase in danger is should justify a ban. But that's not a question about rationality.
Aziz Z. Huq (00:50:10):
Can I just say one thing just about that? Yeah. Look, I think that the reason I said that I don't mean it to be a local presence or anything, but bit I, I think so. I think that we have a really culture here at the law school and the university listening respectfully to all points of view that have substance to them. And unprofessional has come a long way to get a view that that has substance to it. I think it's really important in our day and age to maintain that civility, not with astounding disagreement and that that's really important for you with respect to your colleagues. It's really important with you with respect to your professors, many of whom you probably, I violently disagree with my name on calling, right? [inaudible] With respect to people who travel a long way and spent a lot of that time to speak to you. I realized that there are constraints on that when there are marginal or hard cases. And the University has ways of dealing with that. I actually think that most of the way of dealing with, with us is through attitudes of respect and civility. And, and if I make a big deal of those it's because I, I look, I think there's many people on both, right and the left to today, look out in the world and see a great deal of incivility and lack of respect. And I, you know, if we're a good example, I think that's terrific and we should preserve that. So if I don't mean to make a big deal about this, but that's what I say. So I'm sorry...
Audience Member 2 (00:51:59):
Well, first thank you for saying that as one of the board members of one of those organizations, but also, professor, I had a question for you about you said about the standing of people outside of the country, not citizens and that the standing issue of something inside of the country sort of advocating for right doesn't necessarily apply on the outside, but it brought to mind something to be learned in Property class with Professor Strahilevitz that is sort of a partner case about the right to live in a non discriminatory and diverse environment where, when one is renting in an environment and they're not personally injured by discrimination, but they're being prevented from living in a diverse environment because their landlord is discriminating against another class, they have standing to sue. So is, is that enough? How would you respond to just that analogy being drawn by a citizen of the United States suing for the right to live in an environment which immigration is not barred based on the case of nationality.
Aziz Z. Huq (00:53:09):
Okay. So first I believe, subject to correction, that most of those- first, I believe that of those claims are based on statutory claims, right? So there are two separate questions here. The first question is, does a person have standing in the sense that a person has injury in fact. Okay, that's question one. So if a person has standing based upon injury in fact, they still have to say, okay, what legal norm was violated? So then the question is, if the person is saying that the legal norm, which is violated is that a person from outside of the country is being penalized on the basis of the free exercise of religion or is being penalized on the basis of their nationality or race, that's a question of the merits, right? And the free exercise or equal protection. That's the question of the merits. So in order to win on the merits after you have injury, in fact, if you are relying on the fact that somebody else has suffered this kind of injury, you have to find that the kind of injury that that person suffered violated a legal norm. And the problem is if the legal norm- and as I said, I don't, we have a long discussion about is the establishment clause individual rights structure or whatever, is an individual rights provision of the bill of rights based upon Verdugo-Urquidez and the case called United States, extra alternative versus William from 1909, which was on all four of this, which is a person who, from outside the country who was, was electing that he had, he's been violated his first amendment rights because he was being excluded because he was an anarchist. That's where this comes from. Right. So I think we need to keep those two things separate. And sometimes as I suggested in individual cases, I could imagine that I would have to hear the, the fact situation that in a case like Kerry versus Den, for example, where a person is arguing that their rights to have their family together, their own right to have their family together.is a constitutionally protected interest that they have, I can imagine that case winning, but it doesn't, to me, it doesn't allow a facial challenge just because the factual situations are so diverse here.
Audience Member 3 (00:56:27):
If we, just, for the sake of argument, assume that president Trump's ban isn't illegal or unconstitutional would we also then have to assume that president Obama's ban was illegal under statute or unconstitutional because President Obama also banned, I believe it was people from six of eight countries that president Trump banned. And if we assume President Obama's ban was illegal, how could we distinguish the two bands using something other than animus or the subjective mindset of the precedent?
Aziz Z. Huq (00:57:00):
So I believe what you're referring to is the federal statute that was enacted late in the second Obama administration. That did not prohibit nationals if any of the six or seven countries that are subject to the current executive orders from entering into the country. So the premise of the question-- that there was a ban from the Obama administration is false-- what statute, and it was a statute rather than an executive order did, was to alter the terms of something called the visa waiver program. So the visa waiver program allows nationals of certain countries to enter the United States without ex-ante obtaining a visa from a U.S. Embassy. They arrive at the border and when they are at the border, they present their passport. They are given typically a tourist visa, for example, when my parents came to the country, they arrived at the border.
Aziz Z. Huq (00:58:12):
And because they're UK citizens, they entered into the country without having a visa, granted. The exclusions from the visa waiver program implemented by statute under the Obama administration were in response to the conclusion that the nature of screening processes available at the embassy level for certain jurisdictions were necessary or appropriate given the then level of active efforts by organizations such as the Islamic state to enter into the country, through visa waiver, through the ex-ante visa free travel. So it was a particular response to a particular, a security concern, which on the accounts that I have read, was empirically founded and pertains, not to the availability of entrance into the country, but to a particular sequence of steps that the individual would have to take. Whether they would have to go to an embassy or whether they can turn up there, there are many differences between the action during the Obama administration that you refer to and the travel bans that are at stake now that pertains the factual premises to the ban and the effects on individual rights. Can we have like two minutes? Cause I want to ask Professor Maltz about one proposition. So, Larson v. Valente, What do you do with that?
Earl Maltz (01:00:12):
Larson v. Valente was the one-
Aziz Z. Huq (01:00:14):
If you could tell them the facts. That is the closest, what do you want to tell them? The facts?
Earl Maltz (01:00:20):
In general terms, there were, there was a certain, and you can correct me if I'm wrong on this, in general terms-
Aziz Z. Huq (01:00:36):
I just looked it up.
Earl Maltz (01:00:38):
Oh, well, see, I, my battery is leaking. So I can't do that.
Aziz Z. Huq (01:00:45):
That's what the president said too.
Earl Maltz (01:00:48):
That's not the only thing that's leaking for him.
Aziz Z. Huq (01:00:52):
Yeah.
Speaker 5 (01:00:57):
Oh, that's all right. I can be uncivil to other people from the other side as well. So the Larson v. Valente, I agree with you is the closest case, but it is a case where what appeared a certain group of religions were granted an exception to I believe it was reporting requirements with respect to property taxes and here's what I think this is different because- and the argument that they said that they said it was an establishment clause violation because it gave that particular group of religions an advantage that most people didn't have. Is that a, is that a fair?
Aziz Z. Huq (01:01:46):
It's that there were exceptions for registration of the reporting of requirements apply to all groups-- any group that obtained less than 50% of its financial contributions. And it turned out that there was only one group, one religion that failed this task. And the court says, look, I'm going to say that you have this slide because it wants it to disfavor this one thing. And the fact that it wants it to disfavor, it doesn't mention the Universalist Church on the face of the statute, right? But at this point, everyone knows is what the statute is doing. That was characterized as an establishment clause violation. So that seems to me that the system in which you have all groups on one side being favored, one group on the other side thinks it is disfavored and as far as I know, no, it's 1917 opens challenge the validity of loss of establishment clause.
Earl Maltz (01:02:47):
I think that, on the other side of that, by the way that even though we're overtime, the court says in Lukumi, right, the court in Lukumi says these cases are always considered free exercise clause cases, right? They said that in Lukumi, and they said that we've talked about animus but these are always considered free exercise cases. And the one thing that I would say about Larson is that it created an exception for [inaudible]. So what we had was, and again if I'm wrong, you can, I'm sure that you, that we had a requirement that most people had, that they described that most people have to have this requirement, but this group does not have to have this requirement that is not needing to go back to the old right privilege distinction. But I think this is important because it seems to be the boundary line between a free exercise and establishment clause cases. That is that in free exercise clause cases, it is almost universal that the court says, or they were [inaudible]. In establishment clause cases, it is virtually universal that the court says: here's something that the government is doing for these churches, for these religious groups for religions generally, right? Those are the things that are described as establishment clause cases. By contrast, free exercise clause cases are cases that have universally been viewed as-- or not universally-- are cases where they say here's something that other people have been able to do that we're taking away from you because of your religion. And that's the borderline. And that's been the borderline. Now I agree with you that Larson v. Valente is the case which is closest to that borderline and it is the most different.
Speaker 1 (01:05:16):
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