The issuance of President Trump’s new (somewhat) revised executive order, temporarily suspending entry into the United States by nationals of six predominantly Muslim countries, has, unsurprisingly, prompted renewed litigation over the legality of the Administration’s policy. As was the case in the original challenges, one important legal issue will be whether plaintiffs have standing to sue. There are a number of suits, with a wide array of plaintiffs, each of which raises different standing questions. In this post I will limit myself to the question of whether States—in particular Washington State—has standing.
It is safe to assume that the Ninth Circuit’s opinion in the initial litigation in Seattle will set the legal standard for any new litigation, at least for cases filed in the Ninth Circuit, and, indeed, Washington, now joined by a number of other states, has already sought preliminary relief in their ongoing suit. Although in some respects the new order weakens the case for standing, the Ninth Circuit’s reasoning is broad enough to make it likely that both the district court and the court of appeals will find that the states satisfy standing requirements. Somewhat less clear is what will happen if and when a case makes its way to the U. S. Supreme Court.
Begin with the Ninth Circuit’s opinion. The court found that the states had standing because of the impact of the EO on their state universities. In part, the court relied on allegations that the order would have prevented faculty and students who are nationals of the designated countries from traveling abroad for research, academic collaboration, or other personal reasons and would have stranded others outside the country. In this respect, however, the new EO is meaningfully different, because it does not revoke or nullify existing valid visas issued to nationals of the affected countries. As a result, individuals with valid multi-entry visas will now be permitted to travel outside the country and thereafter return. The EO’s impact will instead be limited to those who hold single-entry visas—because, once they leave the country, they will be unable to return—and to those who do not currently hold a visa but wish to obtain one and thereafter enter the U.S.
In any case, however, the Ninth Circuit did not rest solely on the injury suffered by faculty and students who are already holding valid visas. It also focused on the fact that the order would have affected the universities’ ability to admit in the future “attractive student candidates” and to “hire faculty from the seven affected countries,” both of which they had in fact done in the past. Importantly, this was not only a theoretical point. The Court proceeded to list a number of examples of individuals—including visiting scholars, prospective employees, and interns—who had been invited by the universities but who would no longer be able to enter the country. Of course, the new EO will have the same impact, albeit perhaps with respect to a smaller number of persons (in part because the universities will presumably receive fewer if any applications from individuals residing in the designated countries). Accordingly, so long as the states can point to specific individuals who have been invited to participate in university activities (as students, faculty, visiting scholars, employees, etc.), but who will be blocked from entering the country by the new EO, their public universities will suffer precisely the same injury that the Ninth Circuit considered a sufficient basis for standing. I should add that, in this respect, the Ninth Circuit’s decision seems unremarkable, both as a matter of settled standing principles and specific Supreme Court precedent, which has treated harm to persons and entities in the United States from the denial of entry as “legally cognizable” for standing purposes. (With respect to the latter, see Kleindienst v. Mandel, 408 U.S. 753 (1972), which at least implicitly recognized the standing of U.S. citizens (in that case, also an academic institution) to challenge the constitutionality of a visa denial (in that case as well, of a foreign visitor to the campus), and for a more recent example, see Kerry v. Din, 576 U.S. ___ (2015). Also see the citations discussed in a strikingly prescient article by my colleague, Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 Cal. L. Rev. 373, 391-94 (2004)).
Nevertheless, the new EO is potentially different from the earlier EO in another relevant respect. It authorizes consular officers to grant case by case waivers to individuals from the affected countries in cases where denial of entry would impose undue hardship, would not pose a threat to national security, and would be in the national interest. The government will presumably argue that the possibility that a waiver will be granted undermines the basis for standing (or ripeness), at least until a waiver is denied in any particular case. The government would presumably distinguish Kleindienst, a case in which American university professors were permitted to litigate a First Amendment challenge to a visa denial of an invited academic speaker from abroad, on the ground that the plaintiffs in that case brought suit only after the Attorney General had declined to issue a waiver.
Notably, however, there was also a waiver provision in the earlier EO, which the Ninth Circuit apparently viewed as irrelevant to the standing analysis. One potential difference between the waiver provisions in the two orders is that the earlier provision was arguably stricter, permitting waivers to be issued only by the Secretaries of State or Homeland Security when in the national interest. More importantly, in contrast to the earlier orders’ terse grant of waiver authority, the new EO provides a somewhat detailed list of illustrative circumstances in which granting a waiver “could be appropriate,” which includes categories likely to apply in at least some relevant cases. That said, under the Ninth Circuit’s reasoning, the importance of these modifications is doubtful. There is a clear difference in tone between the two EOs in this respect, but only a modest difference in substance, and it would be equally difficult to predict under either whether the waiver authority will be used liberally or sparingly. Given the Ninth Circuit’s implicit dismissal of the relevance of the original waiver provision, it seems reasonably safe to assume that that particular court of appeals will reach the same result in the new state litigation.
On the other hand, the government does have a potential counterargument to distinguish the earlier ruling. It might assert that the Ninth Circuit at least implicitly was resting on the evident impracticality, or futility, of obtaining favorable exercises of the waiver authority because of the shortness of time, a concern that might be less pressing in future cases under the new EO. One reply would be to point out that some, if not many, invitees might well decline to go through the uncertain waiver process, especially given the course of conduct in which the unpredictable but consistently unfriendly Trump Administration has engaged. The state universities would therefore suffer much the same injury, irrespective of the EO’s waiver authority and how liberally it might be applied in theory or in practice. It would bolster this argument, of course, if the states alleged specific examples of invitees who are unwilling to proceed through the waiver process. Another reply would be simply to deny that there is any basis for believing that the Ninth Circuit rested on this rationale for dismissing the relevance the waiver authority.
Of course, the Ninth Circuit’s approach, however explained, would be of little weight in the U.S. Supreme Court. One might therefore expect either the waiver or some other issue to emerge at that stage and to offer an out for the Court should it wish to avoid being dragged into a hot political controversy. In addressing standing, moreover, the Court might well take the opportunity to put the kibosh on a recent development in standing doctrine that both favors the plaintiff states and is of considerable consequence in its own right. Here, I refer to the problem of so-called state standing.
In Massachusetts v. EPA, 549 U.S. 497 (2007), a liberal majority announced a new solicitude for the standing of states, suggesting that to some undefined extent states would be accorded standing more broadly than other parties. At the time, the conservative wing of the Court objected strenuously, rightly perceiving that the ruling threatened to undermine central goals of the standing doctrine that they had been assiduously constructing for decades. Nevertheless, the ruling soon proved especially attractive to Attorneys-General in “red” states, who sought to exploit the decision in order to launch legal challenges to a number of key Obama Administration policies. And, correspondingly, the doctrine of Massachusetts v. EPA found a friendly reception in the lower courts, particularly among conservative judges, and most significantly in Texas v. U.S., in which it became the foundation for state standing in the case that struck down the Obama Administration’s DAPA program. (The speculation is that the four conservative Justices voted in favor of standing in Texas, enabling the Court to affirm the decision below by an equally divided Court.) The issue is sure to return to the Supreme Court sometime soon, only once again the politics have shifted. Now it is the Attorneys-General in “blue” states seeking to challenge the policies of the Trump Administration who find the doctrine congenial. Given the political stakes, one might accordingly expect the conservative wing of the Court to feel some urgency about finding a vehicle for overturning or limiting the reach of Massachusetts v. EPA. The Washington/Minnesota case may well prove to be just that.
It should be noted in this respect that the Ninth Circuit did not, in fact, rely on Massachusetts v. EPA for its standing ruling—and for good reason: As already noted, the plaintiff states were asserting injuries that settled law recognizes as sufficient for standing. In contrast to Texas v. U.S., therefore, there was no need to have recourse to the “special solicitude” doctrine in order to pump up the case for standing. Still, if the standing question appears more equivocal to a majority of the Justices—perhaps because of the waiver provision of the new EO—that picture could change and the special solicitude doctrine prove relevant and, perhaps, even decisive. For that reason, it would not be surprising to find the Court addressing the issue.
There are certainly grounds for thinking that the Court’s conservative wing will be skeptical about the states’ standing (though, importantly, the states have a temporary advantage so long as the Court remains short-handed and thus evenly divided along ideological lines). A major theme in the Court’s standing jurisprudence over the past few decades—and a core commitment of its conservative wing—has been to make use of standing doctrine to discourage suits challenging exercises of executive power. The Court has purported to find in standing a separation of powers principle designed to protect the executive branch both from supposed congressional overreaching and from challenges by private citizens complaining of the President’s failure faithfully to execute the laws. In contrast to the state standing doctrine of Massachusetts. v. EPA, in these cases the Court has imposed, again to an undefined extent, stricter standing requirements than apply in other sorts of cases. A suit challenging the new EO could run up against just this kind of concern. Although the challenges in this case are importantly different than in typical “Article II” standing cases—at least insofar as they are grounded on alleged violations of individual rights—they do manifestly raise difficult separation of powers issues concerning the scope of executive power. (E.g., is it appropriate for the courts to inquire into the President’s subjective intentions?). From this perspective, it would not be surprising to find the conservative wing invoking Article II concerns as grounds for denying the states access to the courts. This possibility may be all the greater in view of the Court’s tendency—again more common on the conservative side—to apply stricter standing requirements in cases involving national security.
As in so many cases, Justice Kennedy may well be the key. On the one hand, consistent with his strong federalism sensibilities, he voted with the liberals in Massachusetts v. EPA. That vote augers positively from the plaintiffs’ point of view. On the other hand, he has usually joined the conservatives in supporting strict standing rules, including in cases in which Article II (and national security) concerns have played a central role. Yet, in the perhaps most important “Article II” standing case, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), Justice Kennedy carved out a middle ground position in a controlling concurring opinion. Perhaps, therefore, it is safest simply to confess the impossibility of prediction in these circumstances.
Two final thoughts: First, as we have seen, arguably the most promising argument for denying standing is the waiver issue. It is noteworthy, however, that denying standing on this ground may not provide the government with an entirely satisfactory outcome. (Perhaps that is why the government seems not to have pressed the point too strenuously in the previous litigation.) Rather than obviating any need to address the constitutional issues on the merits, such a ruling would likely only delay their ultimate judicial resolution. Presumably, it will not be difficult for the states to find an individual from one of the six designated countries who applies for and is denied a waiver. In this respect, however, there is a potential tension between, on the one hand, the states’ strategy to pursue a facial challenge to the EO and seek (nationwide) preliminary injunctive relief in the lower courts and, on the other, their need to establish a factual basis for standing in the Supreme Court. If they do obtain preliminary relief in the lower courts, they may enter the Supreme Court in a vulnerable posture on the standing issue. In contrast, if the order goes into effect during the pendency of the lower court proceedings, they may well have strong grounds for standing by the time their case reaches the Court.
Second, I have thus far avoided discussing the issue of so-called third party standing. The Ninth Circuit readily disposed of the issue as presented in the posture of the original action, and I won’t repeat the court’s arguments here. Under the new EO, however, the issue of third party standing may prove more complicated. In the original action, the states were asserting the rights of individuals who would be denied entry under the EO, some of whom were then residing in the United States or had already been issued valid visas. The new EO goes far, however, in limiting its application to such individuals. Instead, its impact falls principally on individuals who have been, or will be, invited to attend the university or participate in university activities and who must apply for a new visa outside the country. One difficulty in this context stems from the uncertainty about whether individuals in this category—who are non-citizens outside the United States—actually have any constitutional rights. If not, then the states will obviously be unable to assert rights that these individuals simply do not have. [Update: This statement requires clarification. It is clear that non-citizens outside the United States do have some constitutional rights. See Boumediene. The question is which constitutional rights and under what conditions. On this point, we have little precedent to go on, though notably—and for better or worse—the Supreme Court may provide some additional guidance soon. (e.g., Hernandez v. Mesa).]
In earlier cases like Kleindienst, the U.S. citizens successfully avoided this delicate problem by asserting their own rights, rather than the rights of an individual denied a visa, e.g., their First Amendment right to receive information, rather than the right of their guest to speak. Clearly, the question of whether individuals excluded by the EO have constitutional rights to religious non-discrimination could prove crucial, but that question should not be conceived of, at least in my view, as a standing issue. In any event, even if non-citizens outside the United States applying for admission have no such constitutional right, the states will presumably argue that the EO violates the Establishment Clause rights of their students and faculty. This position would be parallel to the approach of the plaintiffs in Kleindienst, but here yet another third party standing issue may arise: Would the students and faculty whose rights the states seek to assert have standing in their own right to raise an Establishment Clause claim? If not, can the prudential prohibition on third party standing be overcome when the parties whose rights are being asserted do not themselves have standing?
With respect to the first question, the answer may not be entirely straightforward, because Establishment Clause standing doctrine is itself, charitably, a mess, and this case in any event raises a novel Establishment Clause claim. Although addressing the issue requires a more searching analysis than I can offer here, the states would presumably claim that the perceived denial of entry on the basis of religion of individuals invited to participate in university activities—and the message of governmental disapproval that such a policy conveys—affects members of the university community in a personal way sufficient to establish standing. Here, again, the “special solicitude” doctrine may prove relevant. Are states entitled to standing in Establishment Clause cases even when citizens would not be? With respect to the second question, the answer is admittedly unclear. Third party standing doctrine is surprisingly underdeveloped, and, as far as I am aware, this particular question has never arisen in the Supreme Court. Any serious assessment would require more development than I can offer in a blog post, even one as long as this.
[Editor’s Note: For more information and analysis, check out Just Security’s Coverage of Immigration and Refugee Executive Order.]