In Trump travel ban fight, Justice
Kennedy's 2015 opinion looms large
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[February 11, 2017]
By Lawrence Hurley
WASHINGTON (Reuters) - Justice Anthony
Kennedy's legal reasoning in a 2015 immigration case suggests the U.S.
Supreme Court's frequent swing vote would be skeptical of President
Donald Trump's travel ban on people from seven Muslim-majority
countries.
The little-noticed case involved an Afghan-born naturalized U.S. citizen
named Fauzia Din who argued she had the right for a full explanation
from the U.S. government as to why her Afghan husband was denied entry.
The justices ruled 5-4 against her.
Kennedy wrote in a concurring opinion that in some circumstances the
U.S. government's motives in denying someone entry could be subject to
legal review.
In their lawsuit challenging Trump's Jan. 27 ban, the states of
Washington and Minnesota cited Kennedy's opinion. Lower courts have
temporarily blocked the ban, but the administration may ask the Supreme
Court to revive it.
Trump’s executive order barred entry for citizens from Iran, Iraq,
Libya, Somalia, Sudan, Syria and Yemen for 90 days and imposed a 120-day
halt on all refugees, except refugees from Syria who are barred
indefinitely.
Curbing entry to the United States as a national security measure was a
central premise of Trump's 2016 presidential campaign, originally
proposed as a temporary ban on all Muslims. He has voiced frustration at
the legal challenge to his order.
Washington and Minnesota argued that Trump's order violated the U.S.
Constitution by discriminating against Muslims. Trump during the
presidential campaign called for a "total and complete shutdown of
Muslims entering the United States."
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In the 2015 case, Din, who lives in Fremont, California, sued the U.S.
government after her husband, Afghan citizen Kanishka Berashk, was
denied a visa in 2009. She objected to the government's visa denial
under a law giving consular officials wide discretion to bar people
linked to "terrorist activities."
The high court's ruling overturned a 9th U.S. Circuit Court of Appeals
decision that said Din was right to insist the government give her more
information about the visa denial.
Kennedy's opinion suggested he could be willing to dig into the Trump
administration's rationale for the order, said Mark Haddad, the Los
Angeles-based lawyer who represented Din in the 2015 case.
"The ostensible reason for the travel ban is security but that's not a
good faith concern if the underlying reason is religious animus," Haddad
said.
'TOTAL DEFERENCE'
Kennedy's opinion showed he is "not prepared to give complete and total
deference to the executive branch in the enforcement of immigration
laws," Haddad added.
Samuel Alito, one of the court's most conservative justices, signed onto
Kennedy's opinion. In total, six of the current eight justices suggested
in that 2015 case that the government was not immune from scrutiny over
immigration-related decisions if there was evidence of a questionable
motive.
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![](../images/021117pics/news_f9.jpg)
U.S. Supreme Court Associate Justice Anthony Kennedy arrives to
attend the 64th Annual Red Mass at the Cathedral of St. Matthew the
Apostle in Washington, U.S., October 2, 2016. REUTERS/Joshua Roberts
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The case brought by Washington and Minnesota, or one of several
similar disputes around the country, could reach the high court
quickly in the wake of Thursday's decision by a three-judge panel of
the San Francisco-based 9th Circuit upholding a Seattle district
judge's decision to block Trump's order.
The Trump administration would need to win the support of five of
the current eight justices to reinstate the order while litigation
over the legality of the directive continues. It could also seek to
end the litigation by issuing a new order.
Neil Gorsuch, Trump's nominee to fill a lingering vacancy, is
awaiting Senate confirmation hearings and is unlikely to be seated
on the court for at least two months.
The 2015 case, called Kerry v. Din, was cited both by the
challenging states and the Trump administration in their court
fight.
Washington state's lawyers argued Kennedy's opinion showed that
courts must look at what motivated the government's decision beyond
the words that appear in the order itself. They cited the previous
comments by Trump and others expressing a desire to keep Muslims
from entering the United States.
The administration noted in court papers Kennedy also made it clear
that the government is entitled to deference, especially on national
security.
Anil Kalhan, an immigration law professor at Drexel University's
Kline School of Law in Philadelphia, said there are multiple ways of
interpreting Kennedy's opinion, which could muddy the waters.
Kennedy's opinion "doesn't necessarily mean he would reach the same
conclusion" on Trump's ban, Kalhan said.
In Tuesday's 9th Circuit oral argument, administration lawyer August
Flentje called the executive order "facially legitimate," meaning
there is no need for courts to inquire further into motive.
Judge Michelle Friedland immediately pounced: "Haven't there been
allegations here of bad faith?" She said Kennedy's opinion in the
Din case as well as a 1972 Supreme Court ruling in a case with
similar themes "envision that's something we should look at."
The 1972 case involved professors objecting to the U.S. government's
decision not to allow a Marxist academic to speak at a Stanford
University conference. The appeals court cited both cases in its
Thursday ruling.
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