Justice Kennedy’s opinion in 2015 case looms in U.S. travel ban fight

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By Lawrence Hurley | WASHINGTON

WASHINGTON Justice Anthony Kennedy’s legal
reasoning in a little-noticed 2015 U.S. Supreme Court
immigration ruling could play a pivotal role in deciding the
fate of President Donald Trump’s travel ban if the high court
eventually decides the matter.

The 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.

On its face, the ruling would seem to help the
administration in its defense of the president’s Jan. 27
executive order, which temporarily barred entry into the United
States by people from seven Muslim-majority nations and put on
hold the entry of refugees. Lower courts have blocked the order,
but the administration may ask the Supreme Court to revive it.

But in a concurring opinion in the 2015 case, Kennedy wrote
that in some circumstances the U.S. government’s motives in
denying someone entry could be subject to legal review. That
reasoning was cited by the states of Washington and Minnesota in
their lawsuit seeking to overturn Trump’s ban.

Kennedy is a conservative justice who sometimes joins the
court’s four liberals and often casts the deciding vote in close
cases.

The states argued that the executive 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.”

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 the government had not given a
legitimate reason for denying the visa.

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.

The case brought by Washington and Minnesota 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, which could appeal to the Supreme
Court as early as Friday, 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. The
case could reach the high court again at a later date.

The Supreme Court is ideologically split, with four
conservative justices and four liberals. 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 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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