Last week, the Department of Justice asked the United States Court of Appeals for the Ninth Circuit to refrain from taking any further action in the leading case challenging President Trump’s already infamous Executive Order (EO) 13769, which temporarily banned entry into the country by nationals of seven predominantly Muslim countries and all refugees, while indefinitely banning entry of Syrian refugees. In light of the government’s assertion that it intends to issue a new EO this week, the Ninth Circuit obliged and placed the case on hold. While the nation awaits President Trump’s new EO, the injunction against enforcement of EO 13769 issued by Federal District Judge James Robart’s February 3 order, and left intact by the February 9 ruling of a unanimous Ninth Circuit three-judge panel, remains in force.
Will Trump’s new EO fare better in the courts than EO 13769 has? That depends on what it says. As an initial matter, if the new EO supplements but does not repeal EO 13769, then the Ninth Circuit and Judge Robart would be justified in conducting further proceedings in the existing case, as would judges around the country considering similar challenges to EO 13769. A long line of precedents holds that a defendant’s voluntary cessation of unlawful activity during litigation does not moot the case against that defendant if the defendant might resume the challenged activity.
What if the new EO formally repeals EO 13769? The Trump administration would still not necessarily be in the clear, because the new EO might be tainted by EO 13769. In its opinion rejecting the government’s request to stay the district court injunction, the Ninth Circuit found that the government had not shown a sufficient likelihood of success in defeating the plaintiffs’ due process objections to EO 13769. But the plaintiffs also alleged that EO 13769 violates the First and Fifth Amendments because it discriminates against Muslims.
While the Ninth Circuit did not directly address the merits of the discrimination claims, it suggested that they too have merit. Meanwhile, in a parallel action brought by the State of Virginia, Federal District Judge Leonie Brinkema found that one of the claims of anti-Muslim discrimination against EO 13769—under the First Amendment’s Establishment Clause—was likely to succeed on the merits. She pointed to public statements by then-candidate Trump and recent comments by former New York City Mayor Rudolph Giuliani as evidence that EO 13769 was the administration’s effort to dress up Trump’s proposed Muslim ban in legal garb.
Some critics of the discrimination cases argue that EO 13769 is valid because it applies to non-Muslims as well as Muslims from the seven listed countries and does not apply to Muslims from other countries. But these critics are mistaken. The law has never required plaintiffs to show that a law discriminates against every member of a protected class or only against members of the protected class in order to win a discrimination case.
In order to prevail on a constitutional challenge to a law or policy that has a disproportionate burden based on an illicit criterion such as religion, a plaintiff needs to show that the government adopted the law or policy because of that disparate impact rather than in spite of it. Once that showing is made—as Judge Brinkema persuasively argued that it was in the Virginia case—the burden shifts to the government to show that the law or policy satisfies exacting judicial scrutiny. Because the federal government has offered nothing but the vaguest invocations of “national security,” it cannot meet this burden. No wonder that the Trump administration appears to be giving up the fight to defend EO 13769.
What comes next? If the new EO completely supersedes EO 13769 and has no disparate impact on Muslims, then, assuming it has no other constitutional infirmities, it will go into effect. But what if the new EO, like EO 13769, disproportionately burdens Muslims? Will it be vulnerable to constitutional challenges?
“The World is Not Made Brand New Every Morning”
In the Virginia litigation, the government argued that the public statements about a Muslim ban that President Trump made when he was a candidate for office should not be considered in evaluating the motivation for 13769. Judge Brinkema rightly rejected this argument, citing the Supreme Court’s 2005 decision in McCreary County v. ACLU of Kentucky.
In that case, the Court invalidated a public display of the Ten Commandments in a state courthouse even though, by the time the case reached the high Court, the Ten Commandments display was embedded in an exhibit that included non-religious documents, such as framed copies of the Magna Carta and the Declaration of Independence. Nonetheless, the Court thought that the government’s impermissible purpose of advancing religion could be inferred from an earlier display of the Ten Commandments alone. Justice David Souter wrote for the majority that, “the world is not made brand new every morning.”
Judge Brinkema invoked McCreary County for the conclusion that Trump’s statements as a candidate are evidence of the motives for his actions as president. In addition, as law professors Robert Tuttle and Peter Smith explained last week in an essay for the Huffington Post, the McCreary case could also bear on the validity of a new EO. If that new EO disproportionately burdens Muslims, then it would likely be tainted by the same illicit intent that taints EO 13769.
Purging the Taint
Does that mean that any immigration policy the government adopts under Trump will be invalid if it has a disparate impact on Muslims? Not necessarily.
Rumors have been circulating that the new EO will apply the same criteria as EO 13769 but expressly exempt green card holders, student visa holders, and other people with substantial contacts with the United States. Such a policy could be invalid, but even if so, by carving out people with prior connections inside the country, the new EO might be immune from legal challenge because legal standing would be difficult to establish.
Moreover, even assuming that the new EO is subject to a court challenge, it might survive. When a plaintiff shows that a law or policy with a disparate impact was adopted for an illicit purpose, the law or policy is not automatically invalidated. Rather, it is subject to exacting judicial scrutiny. A showing of true national security necessity could thus validate even a policy with a disparate impact. To be sure, there does not appear to be any remotely compelling national security rationale for EO 13769, but it is at least possible to imagine that one could be found for a different policy with a disparate impact on Muslims—one that, for example, subjected Europeans who had recently traveled to Syria or Iraq to extra vetting in order to obtain visas.
Finally, the Trump administration would not have to meet a heightened scrutiny standard if it could show that despite following EO 13769 in time, the new EO was unpolluted by anti-Muslim prejudice. How could the administration make such a showing? Neither McCreary County nor any other Establishment Clause case provides an answer. Nonetheless, we can find guidance in a line of cases involving criminal procedure.
The Attenuation Doctrine
Under longstanding precedent, when the police conduct an unlawful search or seizure, the evidence they thereby obtain generally cannot be admitted into evidence. Neither can most evidence obtained as an indirect result of the unlawful search or seizure. Such secondary evidence is deemed “fruit of the poisonous tree.” However, not every piece of downstream evidence is excluded under this doctrine. At some point, the Supreme Court’s case law says, the taint of the unlawful search or seizure is so attenuated that the resulting evidence can be admitted.
The leading case is the 1975 Supreme Court ruling in Brown v. Illinois. Brown was arrested (a “seizure” of his person within the meaning of the Fourth Amendment) without probable cause or a warrant. Approximately two hours later, he made an incriminating statement to the police. The Court, in an opinion by Justice Harry Blackmun, acknowledged that a statement that would not have been made absent the initial unlawful arrest could nonetheless be admitted into evidence where there is a sufficient attenuation of the taint. In the particular case, however, the Court concluded that the taint was not purged.
The Brown Court emphasized four factors relevant to a determination whether the taint has been purged: whether the suspect was given Miranda warnings; the temporal proximity between the arrest and the statement; the presence of intervening factors; and the “flagrancy of the official misconduct.” Subsequent attenuation cases apply these factors.
Applying the Brown Factors to a New Trump EO
Although the attenuation doctrine of the criminal procedure cases does not apply of its own force to the cases that might be brought against the new Trump immigration EO, its identification of key factors is very useful. Putting aside Miranda warnings, which have no obvious analogue in a case charging anti-Muslim bias, each of the remaining Brown factors commends itself as a useful means of determining whether an earlier unlawful policy taints a later one. We can thus import and apply them to the immigration EO question.
Temporal proximity seems quite damning. The Trump administration plans to announce a new EO only a week after asking for a pause in litigation challenging EO 13769. Given the ordinarily slow pace of public policy making, it is nearly impossible to characterize a new EO as remote in time from the original.
Likewise, there do not appear to be any intervening factors. Nothing has happened in the last several weeks that now justifies a policy disproportionately burdening Muslims.
Nor do there appear to be intervening agents. President Trump has not, so far as one can infer from the outside, convened a panel of national security experts who opposed his “Muslim ban” talk but who nonetheless have concluded that a new policy having a disparate impact on Muslims is needed. Doing so would go some way to demonstrating that any disparate impact on Muslims was a regrettable but unavoidable consequence of the new EO, rather than the very purpose of the policy. Accordingly, in evaluating whether the new EO is tainted, courts would be justified in looking at the process that produces it. If the new EO, like the former one, appears to have been driven by the White House staff rather than outside national security professionals, it will be tainted.
Finally, flagrancy counts strongly against any new Trump EO. In the teeth of traditions going back to colonial days—when people fleeing religious persecution in Europe came to America to find haven—candidate Donald Trump made religious bigotry a centerpiece of his campaign for the presidency. The stain of his flagrantly un-American and unconstitutional policy can be washed away, if at all, by only the most powerful possible justification for his new EO.
Special thanks are due to Nathan J. Smith of the Cornell Law School J.D. class of 2017 for help with this column.
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