Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The day Donald Trump announced his (first) travel ban, hundreds of lawyers set up crisis centers in airports around the country and began drafting legal challenges to the executive order. The next day, Judge Anne Donnelly of the District Court for the Eastern District of New York issued a temporary restraining order. Soon thereafter, judges in Seattle, Boston, Detroit, and Alexandria issued a variety of orders staying part or all of the ban. Trump appealed the Seattle court’s decision to the Ninth Circuit, arguing, among other things, that the President’s national security decisions were unreviewable. The Ninth Circuit denied the request for a stay, and in its decision strongly disagreed with the president’s depiction of the role of courts and the executive in national security matters. “There is no precedent to support this claim of unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the per curiam opinion explained. “Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.” After making a few angry tweets about the Ninth Circuit, and threats to take the case to the Supreme Court, Trump and his staff went to work on a new order.
During this flurry of legal challenges, a cartoon began circulating widely online. Blind Justice was staving off a pugilistic Donald Trump from the Statue of Liberty saying, calmly, “I’ve got this.”1 Trump had sought to use national security rhetoric to avoid judicial review of his immigration policies, and courts had refused to stand down.
Jim Pfander’s excellent new book, Constitutional Torts and the War on Terror, paints a very different picture of the role judges have played in evaluating and constraining the executive since September 11, 2001. Pfander describes federal courts’ repeated refusals to decide Bivens claims—constitutional damages actions brought by citizens and foreign nationals against federal officials—challenging the CIA’s rendition, detention, and interrogation program and other tactics used in the war on terror. In Pfander’s view, courts in these cases have both overstepped and failed to perform their institutional role. It is the job of courts to evaluate the legality of official conduct without entering into political or policy considerations. In the early days of the Republic, Pfander shows, courts did just that, announcing the law, imposing liability when appropriate, and leaving it to the legislative branch to decide whether to mitigate the pain of the judgment through indemnification.
In contrast, Pfander explains, courts in recent years have used political concerns as justification not to perform their core function—stating what the law requires. Courts have repeatedly engaged in the types of political balancing that should be performed by other branches, and have applied those political considerations in several doctrines—qualified immunity, the state secrets privilege, questions about the extraterritorial application of U.S. laws—to avoid stating what the law allows. In doing so, courts fail to define the boundaries of government authority. And the executive has free reign to continue fighting its wars in the manner it sees fit without threat that courts will impose damages or clarify the scope of government authority. If the central thesis of Pfander’s book was portrayed in a cartoon, Blind Justice would be burying her head in the sand while the Executive branch pummeled Lady Liberty.
Why hasn’t the legal challenge to the travel ban (thus far) had the same sorry fate as the Bivens cases challenging federal government power since September 2001? Professor Pfander’s book offers some intriguing explanations. Pfander compares courts’ reluctance to say what the law requires in Bivens actions with courts’ relative willingness to engage with substantive questions in habeas cases. Pfander suggests that the differences in the adjudication of these two types of cases may be attributable in part to the fact that Bivens actions—unlike habeas cases—expose individual officers to the ostensible threat of financial liability. Indeed, Pfander suggests that cases for nominal damages might be able to square the circle, allowing Bivens claims to be adjudicated and the law to be articulated without the imposition of damages. This distinction might also explain courts’ willingness to rule on temporary restraining orders regarding the travel ban, which did not seek damages.
Another possible distinction between Bivens cases on the one hand, and habeas cases and challenges to the travel ban on the other, concerns the nature of fault and culpability. In damages actions, an individual defendant has been charged with wrongdoing, and the court’s job is to determine whether that defendant engaged in wrongful conduct. When courts must assess the wrongfulness of an official’s conduct, this assessment begs a review of political considerations underlying their action. In a habeas case, in contrast, the focus is on whether a person has been wrongfully detained. Although, as Pfander notes, an individual will be named as the custodian and their conduct will be evaluated, the gravamen of the claim concerns the wrongfulness of the petitioner’s detention and the policies under which he was held instead of the wrongfulness of individual officials’ actions. Similarly, the focus of the travel ban is on the constitutionality of the executive order, not the actions of an individual defendant (besides Trump himself).
A third possible explanation for the difference between judicial engagement with the travel ban and the cases that Professor Pfander describes is that there has been a shift in the confidence judges afford the Executive branch. In the years immediately following September 11, 2001, courts assumed that the Executive branch needed all of the power and discretion that it demanded. Now, either because we are more than fifteen years past 9/11, or perhaps because of the temperament of the person currently occupying in the Oval Office, courts may be less willing to trust the Executive with the power to do what he thinks is right.
There is a fourth possible distinction that makes the legal challenges to the travel ban unique. The ban was uniquely explicit about the racial and religious discrimination it advanced. In Iqbal v. Ashcroft, the Supreme Court dismissed the complaint filed by Javaid Iqbal, who was held in highly restrictive conditions in the weeks after September 11, 2001, because it was not plausible that Attorney General Ashcroft or FBI Director Mueller arrested and detained Arab Muslim men on account of their race or religion. In contrast, President Trump explicitly stated on the campaign trail that he planned to prevent Muslims from entering the county. After the Executive Order was issued, Rudy Giuliani explained to Fox News that Trump had asked for a “Muslim ban” and sought Giuliani’s guidance about “the right way to do it legally.” The executive order made little effort to hide the intentions of its authors and so essentially begged courts to intervene.
President Trump has now authored a new travel ban. Despite assurances by the Attorney General, Secretaries of State and Homeland Security, and other spokespersons that the ban is crafted to withstand judicial scrutiny, the courts that have considered the ban are not so sure—two district courts have blocked the ban and one judge has upheld it. The cases will now make their ways to courts of appeals and, most likely, to the Supreme Court. How will the higher courts respond? And how will courts respond to future Trump administration actions taken in the name of protecting us from suffering casualties in the war on terror? When legal challenges to such actions arise, as they almost certainly will, the administration will almost certainly rely on arguments about the need for courts to defer to the executive branch on issues of national security.
Courts’ willingness to decide cases arising from the travel bans should not give Pfander or those sympathetic to his position (myself included) comfort that courts have adopted the conception of judicial duty that Pfander encourages. For the reasons Pfander suggests in this book, and for other reasons I have suggested, the decisions issued thus far regarding the travel bans may be sui generis. Yet there is also reason to hope that the travel ban litigation has caused at least some judges to hear and heed Pfander’s warnings. As Judge Robart, a judge from the Western District of Washington, explained in his decision granting the temporary restraining order preventing enforcement of the Executive Order:
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution….The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.
As elegantly as James Pfander explains everything in his book, I don’t think that he could have said this any better.