A federal appeals court ruled against President Trump, refusing to allow Trump’s executive order concerning immigration and travel to go back into effect. It’s a complicated case, and a complicated ruling. Let’s look at the clearest parts of the ruling, and what’s good and bad about legal language.
First, the context. Trump’s executive order 12 days ago blocked travel from seven Muslim-majority countries as well as all refugee resettlement, and suggested a preference for refugees who are not in the religious majority in their countries (that is, non-Muslims). A federal district court agreed to block the order based on arguments from the attorneys-general in Washington and Minnesota, agreeing that the US Government was unlikely to prevail in a full hearing and that the order created irreparable harm. Last night, three judges on the appeals court agreed with the district court, and found no reason to allow the order to resume.
You can read the ruling yourself. It’s tough going, because it’s full of citations and legal jargon. But the central arguments are clear enough, and I’ve excerpted them below with my commentary.
The best bits from the appeals court ruling
Why the states have standing to block the order
The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which . . . are branches of the States under state law.
Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. . . .
According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States.
Best parts of this: The clear and specific cases that the court cites, including the descriptions of visiting scholars blocked from entering the country.
Why the courts are allowed to review immigration orders, which are the prerogative of the Executive Branch
The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” . . .
. . . the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy.
. . . the Supreme Court has repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.
[Quoted from another case]: [N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.
Best parts of this: Makes it clear that the federal government can’t do whatever it wants — that’s not the way the system works in America. Everything is subject to legal challenge.
Why the order contains unconstitutional religious discrimination
The First Amendment prohibits any “law respecting an establishment of religion.” . . . A law that
has a religious, not secular, purpose violates that clause, . . . as does one that “officially prefer[s] [one religious denomination] over another,” . . . The Supreme Court has explained that this is because endorsement of a religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’”
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections . . . of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.
The States’ claims raise serious allegations and present significant constitutional questions.
Best parts of this: Based on previous statements from Trump and Rudy Giuliani, it’s clear that this ban was intended to target Muslims. The First Amendment prohibits this. And the court explains that it’s allowed to use Trump’s previous statements to prove that unconstitutional discrimination was the goal.
The best and worst of legal language
Legal documents read like bullshit. They’re full of passive voice, jargon, and imprecision. I’m not crazy about jargon-bound or vague phrases like “concrete and particularized injury,” “unreviewable authority,” or “serious allegations.” And those are from the clearest portions of the order — there’s lots worse in there.
Legal writing prioritizes precision over clarity. This makes it verbose and complex.
But there is a lot to learn from how judges write.
Where judicial writing contains facts, it cites sources for those facts. Where it contains opinions, it backs them up with precedent. Where there is no precedent, judges argue based on logical reasoning from facts and previous precedents.
I also like how in this argument, the judges present the cases of the opposing parties (in this case, the states and the president) in a clear and unbiased way. Only after clearly stating the parties’ points of view do they argue for or against them. This is a desirable quality — all writers should give opposing viewpoints a fair airing before critiquing them.
So learn from the courts. Don’t let jargon get in the way of clarity — you’re not bound to write the way that judges do. And do present arguments and facts clearly, with citations, regardless of whether you agree with them.