By Noah Feldman
No matter how the U.S. Court of Appeals for the 9th Circuit rules, the legal challenges to President Donald Trump’s executive order on immigration from seven majority Muslim countries won’t be over. Not even close. That’s because, in addition to the case that currently has the policy on hold, a number of challenges to different aspects of the order by different kinds of plaintiffs are pending in courts across the country.
This may seem perverse, given the need for a single immigration policy. But it’s the way challenges to federal action proceed almost all of the time, and it follows the same convoluted path as the arguments against the Affordable Care Act during Barack Obama’s presidency. Ultimately, only the U.S. Supreme Court can impose uniformity throughout the federal judicial system. This system isn’t perfect, but it has stood the test of time.
The immigration cases each have different nuances with possible legal implications. The case brought to a federal district judge in Seattle features Washington State and Minnesota as plaintiffs. Its most distinctive feature is the question of whether the states are in a position to sue.
In 2015, Texas and 25 other states sued the Obama administration over his plan to delay deportation of parents of U.S. citizens who were themselves undocumented. Texas’s theory of why it had standing to sue was that it would have to spend money to issue driver’s licenses to the undocumented people — a theory that both the District Court and the U.S. Court of Appeals for the 5th Circuit accepted, and that the U.S. Supreme Court declined to strike down with a split 4-4 vote.
The standing claims for Washington and Minnesota in the Trump case are similar but not exactly the same — because they are arguing for more people to be let into their states, not fewer. It’s therefore difficult for them to argue that Trump’s order forces them to spend money. The states have added the argument that they administer state universities that will miss out on students and guest speakers from the seven countries who have visas but won’t be let in. That’s not a bad claim to standing, but it’s not a home run.
Meanwhile, a suit in Boston was originally brought on behalf of two professors, both Iranian nationals, who were detained for several hours at Logan International Airport on Jan. 27, the first day the order was in effect. The professors were green-card holders, as were three more plaintiffs added to the case. The federal judge in Boston ruled that all of them no longer have standing now that the Trump administration has decided not to extend the ban to lawful permanent residents.
Two other Boston plaintiffs are in the U.S. on student visas. But the judge ruled that they don’t have standing to sue because there is no legal entitlement for visa holders to get back into the country once they have left voluntarily.
The remaining plaintiff in the Boston case, Oxfam America Inc., said it had standing because its free-speech rights were violated by the inability to invite speakers from the seven countries. The judge said that Oxfam’s free-speech rights weren’t in play.
All these legal conclusions in the Boston case can be appealed, and different courts could reach different conclusions about them. But they show how distinct the Boston case is from the one in Seattle.
A newly filed case in Maryland is different yet again. Here the American Civil Liberties Union has filed suit on behalf of the International Refugee Assistance Project and HIAS, a traditionally Jewish refugee resettlement organization. The resettlement groups’ standing argument rests on a precedent called Havens Realty Corp. v. Coleman, which I wrote about recently because it was cited by the plaintiffs in the foreign emoluments suit against Trump.
In the Havens case, the more liberal Supreme Court in 1982 found that an organization devoted to getting fair housing opportunities for black residents in Richmond, Virginia, had standing to sue a realty company for steering blacks away from certain neighborhoods. The resettlement groups that would have worked with the refugees who will now be blocked will be arguing that their situation is similar. The difference, of course, is that while the Richmond group had black clients but no homes to put them in, the Trump order will deprive the resettlement agencies of clients from the seven countries in the first place. Nevertheless, it makes sense for the organizations to bring the case and see what happens.
There are lots more cases out there — this is by no means a comprehensive list.
For the Trump administration, defending these various suits will no doubt be logistically challenging and politically frustrating. The moment one case is denied, another may spring up in its place.
Consolidating the arguments is theoretically not impossible. But that practice mostly occurs in complicated litigation like mass torts or class actions across multiple jurisdictions. The paradigm doesn’t fit the current litigation very well, in part because the plaintiffs aren’t all similarly situated.
In practice, legal uniformity can come one of two ways. Temporarily, a single judicial order like the one from the Seattle judge can freeze the executive order nationally. In the long run, the Supreme Court would have to issue a decision — which would be binding on all courts in all jurisdictions.
That’s not very efficient, nor does it make much sense on a national issue. It seems a bit unfair that plaintiffs get multiple bites at the apple and get to try out different judges in the hopes of finding some who consider the order unconstitutional.
Yet the structure of the federal courts makes this process, known to lawyers as “percolation,” entirely normal. All kinds of issues of federal law and constitutional doctrine are decided differently by different courts around the country every day. The disparities can remain in place, sometimes for years.
Eventually, when the issues have been discussed and analyzed in various venues, the Supreme Court will have its say. That’s enough uniformity for the system — and for the rule of law.
Bloomberg View columnist Noah Feldman is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. Contact him at nfeldman7@bloomberg.net.
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