The real Victors in Judges’ ban on Trump’s Ban: US Universities

By Juan Cole | (Informed Comment) | – –

A three-judge panel from the 9th Circuit Court of Appeals on Thursday denied the Trump administration’s request that the Executive Order banning Muslims from 7 countries from coming to the US be reinstated. It was set aside by a Temporary Restraining Order issued by a Federal judge in Seattle.

One thing about this decision leapt out at me: that Trump’s actual opponents are in the main the University of Washington Seattle, Western Washington University at Bellingham, the University of Minnesota, and other state institutions of higher education in the two states that brought the suit against the EO.

That the universities should stand, at least temporarily, in the way of President Bannon’s plans to ban Muslims from the US, is poetic justice. Universities are everything that Fascists hate. They are machines for shredding the fake news on which the progress of Fascism depends. They promote rational tools of thought. They are cosmopolitan and international. They are based on merit and discount race. Fascism maintains that whites are superior to other races in every way, including in intelligence. But physics doesn’t care if you are white or brown. Physics only cares if your formula is correct, i.e. matches up with reality. Alt-NeoNazis like Bannon have no advantage in the university, despite their status as wealthy white males, unlike the situation in populist politics. Indeed, the irrational and apocalyptic discourse of a Bannon is looked down on and ridiculed by the university community.

It is no accident that one of the first things the Nazis did on coming to power in 1933 was to fire the Jewish university professors. That was only the beginning of the neutering and gutting of the universities under Fascism.

The Trump administration argued that Washington State and Minnesota had no standing to sue over the EO, since it had nothing to do with them. Judge James Robart found that the states did have standing to sue, on several grounds. One is that the states fulfill the role of parents or guardians for refugees resident in the state. Washington has at least 25,000 residents from the seven countries being banned, and has the obligation to look out for their interests. Another basis for their standing is that these states are economically harmed by the EO.

The main example of economic harm cited in the TRO is the harm to universities. Everything is telegraphic at this stage in the proceedings, so not a lot of detail is offered. But we can imagine the sorts of harm implied here. I noted last fall,

“There are about 1 million international students studying in American universities– nearly 5% of the country’s undergraduate population. Very large numbers of them are on government scholarships or are from wealthy families in their home countries, and the bulk of them pay full tuition. But they also rent apartments and go out to eat, and shop. These international students bring in $30 billion a year to the US economy.”

That is, the universities have students from these countries who were getting locked out of the country despite valid visas and travel documents, or even green cards (permanent residency). That is a loss of tuition, dormitory fees, etc. In addition, the universities employ professors and researchers from the 7 countries, and so would lose their contribution to e.g. research on a scientific project, where those non-citizen researchers may have been playing a crucial role. To have these researchers suddenly and arbitrarily deprived of the ability to follow through on their commitments to these projects is a clear loss to the universities. The numbers of university-related people would be even greater if green card holders and those with dual citizenship are affected, as was initially asserted by the Trump administration. In the face of massive protests, it backed off these extreme positions, but only via a note from the press secretary. The EO could still at any moment be interpreted to sweep up permanent residents and even US citizens.

The ruling says,

“The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law . . . Specifically, the States alleged that the teaching and research missions of the 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. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.”

The three-judge panel in San Francisco found that the universities do indeed have “third party standing” because their interests are “inextricably bound up with the activity the litigant wishes to pursue…” Moreover, in other cases schools have been allowed to assert the rights of their students. And, the quality of their faculty obviously deeply affects the universities.

So the 3 judges found that the states do have standing to sue, reaffirming the lower court opinion. But note that while the states might have other interests in the EO besides those of the universities, it is these educational harms that are foregrounded in both of the initial decisions staying the EO until larger issues can be addressed.

The Trump administration also tried to argue that the president’s EO is not subject to review by the courts because he has the right to exclude any class of aliens by fiat if he fears they are a danger to national security. The judges laughed this unreviewability argument right out of court, citing previous court reviews of precisely this sort of policy, as when Bush tried to deny habeas corpus (the right to be produced before a court when charged with a crime) to detainees (‘enemy combatants’) charged with terrorism, and the Supreme Court slapped him down.

A further consideration in upholding the TRO is the Executive Order’s violation of the Establishment Clause. The 1st Amendment in the Bill of Rights forbids the government to make one particular religion a state religion. The panel accepted the States’ argument that statements of Trump, Rudy Giuliani and others make it clear that the EO is a Muslim ban and if so, that it violates the first amendment. The judges argue that courts have often taken the legislative history into account in striking down laws that have the effect of discriminating with regard to religion. This argument appears to be controversial among the legal scholars, but they do give a lot of case law for this way of proceeding. Those who cite previous instances of US visa or refugee preference for minorities, it seems to me, are on thin ground because those took place before the 1965 Immigration Act, which forbids such discrimination. Likewise, lots of unconstitutional things were done on racist grounds in the past that would not pass muster today. I think both statute and current Supreme Court approaches to the Establishment Cause tell against the discrimination mandated in the EO.

As the case moves through the courts, the deference to the president on national security issues may reemerge as a decisive consideration. This dispute is by no means over, and precedent probably is on the side of the EO. But in these essential first weeks, we can be proud that the universities took a leading role in standing against this Muslim ban, against this affront to the constitution, against this nasty piece of Neofascist bigotry.


Motion for stay, 9th Circuit Order, 9 February 2017 by The Guardian on Scribd


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13 Responses

  1. What would the informed speculation be for this case?

    Presumably it’ll (soon?) Reach SCOTUS. Will they punt it; if they uphold at this moment it’d be a resounding repudiation.

    At that point there’s no telling how T would react to defend his Ego.

  2. Sure the appeals court just continue the TRO. But I am pretty sure when it gets to the Supremes they will overturn. The 1952 Immigration and Nationality Act permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. That right is still in place after many additions and changes to the law. I don’t agree with how Trump did the EO and how it singled out the specific countries it did, but I think it is dangerous to limit the President in actions concerning matters of national security. By national security I mean our actual borders and the interior part of the country, nit the grand standing and involvement in foreign wars that have nothing to do with the security of the US. I personally, for economic reasons, think all immigration should be suspended for a while. Immigration has not been good economically for the US recently. But if someone has been approved or granted a green card then it should still be in force. Retroactive suspension is not the way to go. And sneakily trying to discriminate against Muslims isn’t right either.

  3. A visit to any science research laboratory of top-tier universities will tell the story. English is usually not the lingua franca in these labs. The research done in these labs results, among others, in valuable patents (usually for the university) and grants to the professors. We are talking billions of dollars.
    Foreign undergraduate students do not often get scholarships. That is another loss.
    And last but not least. Some foreign students may come here with a bag of notions about what is wrong with our nation. From personal experience I witnessed their surprise that some of their professors knew far better what is wrong here than they did. Some of them returned to their countries with substantially more positive views of our nation than when they arrived.

  4. The GOP despises education in general. Primary and secondary education is constantly under assault in the name of “choice”– their euphemism for sucking cash out of schools and handing it to unregulated businesses with no accountability, and sometimes no interest in true facts (wrt science or history), or in student diversity (“re-segregation”). Ask the NAACP about charter schools.

    Astute point about US universities bringing in foreign dollars,

  5. It’s a situation where Trump gains either way. If his order is upheld he is vindicated, and if it’s denied it will prove to his supporters how badly the ‘swamp’ needs clearing, and if some terrorist attack should then occur it will be ‘proof’ he was right regardless of contradicting facts since facts have now gone the way of the pony and trap.

  6. These international students bring in $30 billion a year to the US economy.”

    The interchange of ideas and greater understanding of our and their cultures may be more important if we can oppose the barbarians that seem, more often then not, to get in the driver’s seat.

  7. My nephew teaches ESL at a major university as a prerequisite for foreign students not yet proficient enough in English to participate in regular college classes. There has already been a major drop-off in students and this stupid ban will be a killer. All these students are full-pay and generate significant revenue to colleges and universities as noted in the article and could be a way for these students to return home with a good perception of the USA in their adult life.

    Given the uncertainty and belligerence toward these students (and foreign faculty too) why would any foreign parent with the means to send their child overseas now consider the United States given the uncertainty of being able to continue their education without interruption? These are long term family planning issues and, given the continuing uncertainty and demagoguery against foreign nationals, why not choose another English-speaking country like Canada, Britain, Australia, New Zealand, etc.?

    What a monumentally stupid decision that will reverberate for years to come.

  8. why not choose another English-speaking country like Canada, Britain, Australia, New Zealand, etc.?

    Two or three years ago “60 Minutes” featured a high tech university in India that was reportedly very desirable for Indian students. The program suggested that students that couldn’t make the grade for this Indian university had to settle for something like MIT . . .

  9. Look here for statistics on the decline in travel to the United States since the inauguration of Donald Trump:
    link to

    A colleague at work who has relatives in Iran told me that her aunts (educated globe trotters who work in the travel industry) have cancelled their U.S. vacation that had been planned for March. Even with the reversal of the ban, they have decided to wait and see if the U.S. is going to “settle down”.

    How many other foreigners are doing the same thing? How many hard-working Americans will earn less money or even lose their jobs because of Trump?

  10. Higher education is one of our most important exports these days. It just happens in the form of bodies coming in rather than boxes going out.

    There are several hundred Iranians at the University of Illinois right now, mostly grad students and post-docs in computer science and various kinds of engineering. If Iran ever does get the bomb, it will almost certainly be designed and built by American-educated scientists. How ironic.

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