Michael Dorf: The Pentagon Papers and the Muslim Ban

This article first appeared on the Dorf on Law site.

On Sunday, the federal government filed a notice of appeal to the Ninth Circuit of the order by Judge James Robart enjoining key provisions of the president's Executive Order limiting entry of various persons into the country. It then filed its motion for an emergency stay.

There are a great many procedural issues, including whether the order is subject to an interlocutory appeal. The government says it is, citing authority that says that although a temporary restraining order is not ordinarily subject to such an appeal, it is where it has the characteristics of a preliminary injunction. I may return to one or more of the procedural issues in the coming days, but for now I want to make one very simple point.

Although Judge Robart's order does not specify which of the grounds offered by the states of Washington and Minnesota for relief are sufficient to establish a likelihood of success on the merits, during the oral argument the judge appeared to be most enamored with the fact that there does not even appear to be a rational basis for the executive order.

It cites 9/11 as a security threat, but as Judge Robart stated during the oral argument, there appears to have been no terrorist attacks in the United States carried out by nationals of the seven countries to which the 90-day suspension applies (and as Washington's brief notes, the suspension does not apply to any of the countries from which the 9/11 hijackers themselves came).

In its emergency stay motion, the federal government argues, as it did in its district court brief and during the district court oral argument, that the assertion of a facially valid national security reason for executive action is simply not reviewable for rationality by courts.

When pressed at oral argument, attorney Michelle Bennett, arguing for the federal government, was reluctant to answer Judge Robart's question whether she was really claiming that there was no rationality review at all, but that appears to be the federal government's position: If the president says national security and offers a facially valid reason, courts can't look behind it.

Related: Michael Dorf: How to Survive Trump and Stay Sane

Yet as Washington Solicitor General Noah Purcell noted, that's not even categorically true in the immigration context. For example, in Kerry v. Din, Justice Kennedy, joined by Justice Alito, wrote a pivotal concurrence indicating that a showing of bad faith could validate a due process claim with respect to a particular factual determination. The equivalent—a showing of irrationality—ought to be able to validate a claim challenging the categorical judgment in an executive order.

But in any event, the federal government does not appear to be making a point about immigration alone. Rather, the federal government is pretty clearly saying that courts don't get to second-guess the executive at all where national security is the asserted basis for the action. And that's simply not true.

During the oral argument Purcell cited the Gitmo detention cases, which are certainly relevant. There's another relevant precedent: The Pentagon Papers Case. The case produced a variety of opinions, but I have long regarded the common ground among all the justices who signed onto the majority to be this:

If there is any threshold the government can satisfy for a prior restraint on the press, it cannot be satisfied by the mere talismanic invocation of "national security." Some particularized showing must be made.

Pentagon Papers was a First Amendment case, but: 1) so is the Washington/Minnesota challenge to the executive order, at least in part (relying on the Establishment Clause rather than the Free Press Clause); and 2) Pentagon Papers establishes a broader principle that necessarily suffuses U.S. constitutional law: Although courts give considerable deference to the political branches with respect to foreign affairs (including immigration) and national security, the mere claim that some law or policy serves national security interests cannot be enough to satisfy judicial review, for if it were, the government would invoke it in every case, no matter how irrational.

One need not dream up hypotheticals. Until yesterday, pursuant to the Trump order the federal government had been excluding infants and children who need surgery on grounds of national security.

If the courts must accept that national security justifies the Trump executive order, we may as well say that there is no more judicial review, because the government will invoke national security in every constitutional case.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at dorfonlaw.org.