Thoughts on the Ninth Circuit’s Ruling on Trump’s Executive Order

The Ninth Circuit issued a per curiam decision denying the federal government’s request to stay the Temporary Restraining Order, which halted enforcement of President Trump’s Executive Order. The opinion was very narrow and did not address the underlying merits. Thoughts below, full opinion here.

Unsurprisingly, the Ninth Circuit strongly rebuked the federal government’s claim that the Executive Order was unreviewable. And–quite understandably–seized the opportunity to utter statements such as this claim “runs contrary to the fundamental structure of our constitutional democracy.”

The rest of the opinion contained very narrow findings. The explanations surrounding those narrow findings contained some interesting points that could be issues as the litigation proceeds, including:

  1. Can the states bring these claims? The Ninth Circuit was careful in its wording on the standing argument; twice couching their findings with the qualifier that the States’ showing of standing was good enough at this very preliminary stage. The Court’s analysis of standing itself was a bit confusing. The Court declined to even address the States’ argument that it had standing based on their ability to advance the interests of their citizens as parens patraie. Instead, the Court simply found the harm to public universities sufficed to show standing (at this preliminary stage).  According to the Court, the Executive Order’s effects harmed the teaching and researching missions of the public universities and the third party standing doctrine allowed the schools to assert the rights  of students, scholars, and faculty affected by the Order. As the case progresses, this explanation is likely too vague to withstand exacting scrutiny. The Justices can be notorious sticklers when it comes to standing limitations and these limitations are more difficult to clear where the plaintiff is not herself the object of the government action. (See e.g., Lujan v. Defenders of Wildlife). But, the States did indicate at oral argument they intend to submit more evidence supporting standing at the preliminary injunction hearing. As the litigants have more time to flesh out their cases, standing could be clearly established for all the claims or be found wanting as to some of the claims.
  2. Which individuals affected by the Executive Order are entitled to due process? The Court found the federal government failed to establish a likelihood it would prevail against the States’ due process claims (at this stage of proceedings). In doing so, the Court made two pronouncements concerning due process. First, the Court declared the Due Process Clause protects all persons in the U.S. (whether lawful, unlawful, or temporary) and certain aliens attempting to reenter the United States after travelling abroad. The Court cited to Supreme Court language construing due process rights for lawful permanent resident aliens, but did not explicitly specify which aliens fell within this category. Second, the Court identified five categories of individuals for whom the states could have “potential claims regarding possible due process rights….” These included: (a) lawful permanent residents, (b) individuals in the United States (even if unlawfully), (c) non-immigrant visa holders who have been in the United States but temporarily departed or wish to temporarily depart, (d) refugees, and (e) applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert. This list indicates potential trouble for the States. Individuals unlawfully in the U.S. have due process rights, but it is unclear how those rights are implicated by this Executive Order. What cognizable interest of those unlawfully in the United States is implicated by an Executive Order prohibiting entry into the United States? As to non-immigrant visa holders, the government indicates this merely permits the individual to travel to a U.S. port of entry and request permission to enter, it does not entitle the holder to entry into the U.S. (click here). It seems plausible that a court could apply a bitter-with-sweet approach, finding these individuals accepted  the benefit of a visa and must accept the restrictions on that benefit. The fifth class cited by the Court includes applicants who have a relationship with a U.S. institution who might have rights of its own. This class is somewhat bizarre. It seems rather novel that the rights of an institution could somehow bestow constitutional due process rights on non-U.S. citizens outside the United States.
  3. What impact will the Executive Order’s purpose play in the religious discrimination claims? The Court was particularly cryptic on the religious discrimination issue, noting that the States’ claims “raised serious allegations and presented significant constitutional questions.” But, the Court demurred on the substantive aspects, only indicating that evidence beyond the face of the challenged law to show the law’s purpose may be considered in evaluating  the Establishment and Equal Protection Clause claims.
  4. What impact will the President’s discretionary authority have? Apart from acknowledging that “courts owe considerable deference to the President’s policy determinations with respect to immigration and national security,” the Court did not provide much analysis on executive power. There was no mention of the statutory battle over the Immigration and Nationality Act, a provision of which authorizes the President to suspend entries into the U.S. for national interests. Also, during oral argument, Judge Clifton asked the States to differentiate between their case and the President’s ability to halt immigration from other countries, including past instances where the President has actually done so. If the States want to prevail, they will need to develop a satisfying answer as to why the President generally has the power to halt immigration, but cannot exercise it in this specific manner.
  5. Did the Ninth Circuit believe the Executive Order was constitutionally defective? On one ancillary issue, the breadth of the Temporary Restraining Order,  the Ninth Circuit levied a somewhat unfair slight to the federal government that indicates the answer is yes. The federal government had argued the TRO was overbroad and requested the terms be narrowed to only those individuals involved in the suit. The Ninth Circuit acknowledged “[t]here might be persons covered by the TRO who do not have viable due process claims,” but declined the request. The Court pronounced it was not their job to rewrite the Executive Order and provided a citation for the principle courts could decline to rewrite a statute to eliminate constitutional defects. The refusal to fashion language that would allow the Executive Order to be enforced against anyone coupled with the tone of that rejection could indicate the Court believed the Order was constitutionally deficient. It was also a bit unfair. The federal government was not asking the Executive Order be rewritten, but that the TRO-a federal judicial order under the Court’s purview-be more narrowly tailored. In the alternative, the refusal could simply be because this was a highly visible public case being heard on an emergency basis. The federal government’s requested language was not adequate and the Court did not have time to draft its own revision of the TRO.

Next up will likely be the preliminary injunction proceedings in the district court, unless the federal government appeals this denial.









Was the mass arrest of protesters at Trump’s inauguration legal?

On Trump’s inauguration day, protests took place in DC. Violence occurred during the protests, including throwing stones, damaging vehicles and storefronts. A black bloc appeared to be used by some protesters. Black bloc is a tactic where individuals engage in confrontational force, donned in black clothing for anonymity; often associated with anarchism. David Gomez, a former senior FBI counter-terrorism official, said black bloc activists often take “advantage of the legitimate protesters to destroy things.”

The police arrested 230 individuals. They were charged with felony rioting. Felony rioting prohibits willfully inciting or urging others to engage in a riot where in the course and as a result of the riot a person suffers serious bodily harm or there is property damage in excess of $5,000. A riot is defined as an assemblage of 5 or more persons which by tumultuous conduct or the threat thereof creates grave danger of damage or injury to property or persons. The maximum punishment for felony rioting is 10 years incarceration and/or a fine.

The Probable Cause Standard in Mass Arrests

The validity of the mass arrest will turn on whether there was probable cause. Because the Fourth Amendment protects against unreasonable searches and seizures, an arrest is reasonable if supported by probable cause. Probable cause generally requires a reasonable belief to suspect that the arrestee committed a crime.

The dubious notion that police had particularized suspicion for each of the 230 arrested protesters suggests the mass arrest was illegal under a traditional probable cause standard. But, the traditional standard has a twist where a large riot is involved.

In Barham v. Ramsey, the DC Circuit reviewed a civil suit against DC officials for a mass arrest during 2002 protests against the World Bank and IMF. Three hundred and eighty-six persons were arrested. Police arrested everyone in a certain perimeter of a DC park after witnessing widespread infractions by demonstrators during these protests.

The Court found an Assistant Police Chief violated the plaintiffs’ clearly established Fourth Amendment rights by arresting an undifferentiated mass of people on the basis of crimes committed by a handful of never-identified individuals. Probable cause did not exist merely on the basis of proximity to others independently suspected of criminal activity, nor did it exist for everyone on the basis that some people had committed criminal conduct. The absence of evidence that the police had particularized probable cause to arrest each individual in that park resulted in a violation of the arrestees’ clearly established constitutional rights.

The police, however, suggested mass arrests are justified to maintain control over a large demonstration that turns violent. The Court seemed to agree, noting that:

“when compelling circumstances are present, the police may be justified in detaining an undifferentiated crowd of protesters, but only after providing a lawful order to disperse followed by a reasonable opportunity to comply with that order.”

But, as the police failed to give a dispersal order and time to comply, such justification did not apply.

This exception was expanded upon in a later case, which permits police to arrest individuals if there is a reasonable belief that that the arrestees were part of a cohesive unit that was observed violating the law. The case was Carr v. District of Columbia, where a civil suit was filed on behalf of the  65-75 people arrested for parading without a permit during a march against George W. Bush’s inauguration, during which violence and property damage occurred. In Carr,the DC Circuit affirmed the need for particularized probable cause, but found such a showing could be satisfied where officers have grounds to believe all arrested persons “were a part of [a cohesive unit] observed violating the law.” The Court found a crucial difference between the Barnham demonstrators and Carr demonstrators–the former did not operate as a cohesive unit, whereas the latter did. The Court believed a requirement officers verify each individual engaged in a specific riotous act would be practically impossible in a large riot, thus making the anti-rioting statute unenforceable in situations where it was most needed. The possibility of arresting an entirely innocent person, the Court noted, should be quelled by the fact the question was only probable cause, not an ultimate conviction. The Court also went on to disavow Barnham‘s suggestion that a dispersal order was necessary before conducting a mass arrest. Such an action, while practical, is not a constitutional requirement.

This decision did elicit a dissent from Judge Griffith, who criticized the Court’s departure from the individualized probable cause standard. Specifically calling out the unsupported proposition espoused by the majority

“that police may lawfully execute mass arrests based upon assessments of group behavior and not upon particularized determinations about individual conduct.”

The dissent also noted that the majority was ambiguous as to what “acting as a unit” means. A question which may be answered by the latest mass arrest of Trump protesters.

Did Probable Cause Exist for the Mass Arrest in the Trump Protests?

Assuming the DC Circuit’s probable cause standard in Carr is applied to the Trump protesters, the police may be able to justify the mass arrest without individualized suspicion that each arrestee committed a riotous act. These arrests should not be valid, however, without a particularized description of the cohesive unit that engaged in the criminal conduct and a reasonable belief that each arrestee was part of that unit. Such an analysis would give effect to the DC Circuit’s concerns in Carr while protecting unnecessarily chilling protected political expression.

Establishing probable cause through group membership (i.e., units) in political protests where violence erupts could chill protected political expression. If the delineation of the group is simply those publicly demonstrating, the risk of acquiescing in police arresting individuals for protected political expression is high. But, if the group’s contours are more narrowly drawn to capture those engaged in the tumultuous and violent conduct, the risk of punishing protected speech is decreased. Depending on how generally the group’s contours are drawn, the chilling effect may be lessened or heightened.

At first glance, this test may appear to nullify the exception for riotous in crowds discussed in Carr, but the Trump protests provide a good example of how this exception can be applied to a more specific group within the larger protesting unit. From news reporting accounts, it appears much of the violence during the protests was from a group engaged in black blocing. (See here and here and here). These protesters worked in groups of individuals clothed in black. Defining the cohesive unit as those demonstrators in groups wearing all black  who had been observed engaging in violence narrows the pool of protesters subject to arrest. Could an innocent individual engaged in peaceful protest be arrested as part of this unit? Yes, but the risk is much smaller if the police are forced to specifically delineate contours for the “cohesive unit” beyond simply identifying a mass of demonstrators in a general area where some unidentified individual committed violence.

As noted in the background, violence is sometimes used as a tactic by individuals taking advantage of a legitimate, peaceful protest. Validating mass arrests based on a general crowd where a few individuals committed violence threatens to create a perverse incentive, whereby protected speech could be suppressed through the use of violent agitators shielded by the crowd. An additional benefit of narrowing the demonstrators subject to arrest to those sharing characteristics of the group engaged in the prohibited conduct is to safeguard against this possibility.



SCOTUS Skeptical of Refusing Disparaging Trademarks

The Supreme Court recently held oral argument in Lee v. Tam, where a band called The Slants was denied a trademark under the Lanham’s Act disparaging clause (15 U.S.C. § 1052(a)).


Simon Shiao Tam is a front man for an Asian-American dance rock band called The Slants. The name was intended to reclaim and take ownership of Asian stereotypes. The Slants believe Asians should not be offended by stereotypical descriptions, but rather be proud of their cultural heritage.

The Patent and Trademark Office, however, felt differently about the meaning of Slants. The office denied Mr. Tam’s application to register their mark, finding it likely to disparage persons of Asian descent and citing the Lanham Act’s disparagement clause. The disparagement clause permits refusing to register a mark that “comprises immoral, deceptive, or scandalous matter; or matter which may disparage….”

Following litigation, the Federal Circuit found the disparagement clause unconstitutional. The law was viewpoint discrimination that did not satisfy the strict scrutiny standard. The Supreme Court granted certiorari to hear the appeal of this decision.

Oral Argument

The government acknowledged a number of points during oral argument to sharpen the issue facing the Court.

  1. The First Amendment was triggered: Government admitted (a) trademarks are used for expressive conduct, (b) the government was not arguing the disparagement clause fit within the narrow categories historically excluded from First Amendment protection like libel and slander, and (c) the government would face First Amendment problems if it used viewpoint discrimination in selecting recipients for benefits of a public program
  2. The disparagement clause could not survive strict scrutiny

The Court focused on two issues during oral argument; the nature of the regulation and the forum in which the regulation applied.

The Court appeared inclined to find the government was engaging in viewpoint discrimination through the disparagement clause. Justice Kagan applied the  clause to a number of scenarios that clearly would constitute viewpoint discrimination, such as permitting a group to register “politicians are good and virtuous,” but denying a group registration as “politicians are corrupt.” The government attempted to refute this contention by arguing all disparagement was prohibited and the government was not attempting to suppress disfavored messages. For example, in 1969 the office had refused registering a mark disparaging the Soviet Union; a disparaging message, but surely not a disfavored message.

The Court seemed more receptive to the government’s arguments about the nature of the forum. The government argued that government speech was involved here, because the government published registered marks in its own publications and then communicated these marks to other countries. Justice Kagan noted that although this may not quite be government speech, it does approach the line. Justice Sotomayor as well remarked that The Slants’s freedom of speech was not being burdened in a traditional way. The band was asking the government to endorse their name to the extent of protecting it beyond what the government chooses. Justice Breyer, however, expressed skepticism because it did not appear that the program’s purpose, helping prevent distraction as to a product’s source, was served by simply eliminating disparaging marks.

The Court’s reluctance to find government speech at play, coupled with the government’s inability to refute that it was engaged in viewpoint discrimination, make it likely that the Supreme Court will uphold the Federal Circuit’s decision that the disparagement clause is unconstitutional.

Additional reading on the case: 

SCOTUSblog, Argument Analysis 

World Intellectual Property Review, Lee v. Tam: SCOTUS provides ‘scant’ insight into view on case

NPR, The Slants: Fighting for the Right to Rock a Racial Slur




Strict in theory, tractable in practice

Despite offering a simplistic principle to guard cherished liberties, strictimissi juris is a seldom used tool in our legal system. Strictissimi juris is a doctrine requiring interpretation in the strictest sense; usually deployed where natural liberties are restrained.

The Doctrine’s Past

Strictissimi juris may have sparse judicial treatment, but its contours have nonetheless been delineated. Unsurprisingly, given the doctrine’s connection with liberties, the cases have revolved around political controversies such as the Second Red Scare and Vietnam War.

The Supreme Court addressed strictissimi juris during the 1960’s, when reviewing a conviction for a Smith Act violation involving registering as a member of the Communist Party. The Court found applying the doctrine to the criminal intent necessary, because otherwise a person who adheres to lawful and constitutionally protected purposes may be punished for unprotected purposes which he does not necessarily share. Ultimately, the Court reversed the conviction for insufficient evidence.

During the Democratic Party’s 1968 National Convention violence erupted amongst anti-war protesters leading to convictions for violations of the Anti-Riot Act.In reviewing these convictions, the Seventh Circuit found strictissimi juris applicable where:

  1. a group activity that is a bifarious undertaking, where both legal and illegal purposes and conduct are involved and
  2. is within the shadow of the First Amendment

When these elements exist a defendant’s criminal intent must be judged strictissimi juris. Such a “[s]pecially meticulous inquiry is justified and required because of the real possibility…of an unfair imputation of the intent or acts of some participants to all others.” For although the defendant may participate in the activity and be sympathetic to its legitimate aims, he did not intend to accomplish them by unlawful means.

The First Circuit utilized the doctrine to reverse a conviction for an anti-Vietnam War advocate. In doing so, the court proclaimed

“The metastatic rules of ordinary conspiracy are at direct variance with the principle of strictissimi juris.

The case stemmed from a series of events that originated with publishing A Call to Resist Illegitimate Authority and ended with four defendants being convicted of conspiracy charges. Strictissimi juris required acquitting one defendant due to insufficient evidence where the defendant’s actions did not extend beyond general anti-war, anti-draft remarks. Evidence that the defendant said he would do “anything” to further opposition to the Vietnam War or that he hoped his words would give men the courage to take active steps in draft resistance were dismissed as insufficient to establish specific intent.

The Second Circuit distilled these authorities to conclude that under strictissimi juris, a court will engage in heightened review to ensure sufficient evidence of the defendant’s own advocacy and participation in the illegal goals of the conspiracy, taking care not to impute the illegal intent of alleged co-conspirators to the actions of the defendants. But declined applying this review where only illegal goals were involved, because strictissimi juris only applies in specially limited circumstances involving a bifarious undertaking.

The Doctrine’s Future

Strictissimi juris is relatively obscure and likely to remain so. Holder v. Humanitarian Law Project contained facts seemingly within the doctrine’s framework with a bifarious undertaking implicating First Amendment rights. Individuals and nonprofits wanted to support the legal objectives of a designated terrorist organization by providing training in peaceful dispute resolution, political advocacy, and contributions. The groups feared prosecution for providing material support to a terrorist organization, however, and sought an injunction. Strictissimi juris would seem to offer these groups protection from criminal liability, because although the terrorist organization had illegal goals and engaged in illegal conduct, the humanitarian groups did not share these illegal goals and would not participate in the illegal conduct. But Congress and the Supreme Court foreclosed this outcome with a statute that did not require specific intent to aid in the illegal conduct and a judicial ruling that the First Amendment was not offended by prohibiting the speech involved in the case.

The future could involve novel applications of the doctrine beyond its political roots. White collar appears to be a fertile ground for strictissimi juris to grow. White collar often involves bifarious undertakings where actors share legal financial goals, but activities to accomplish this include both legal and illegal conduct; plus commercial speech, like political speech, is entitled to First Amendment protection.