About 4 ½ months ago, an attorney representing the administration of then-Indiana Gov. Mike Pence stood in front of what amounted to a judicial firing squad.
“You are so out of it,” U.S. Appeals Court Judge Richard Posner told Indiana Solicitor General Thomas Fisher, who was tasked with defending Pence’s decision to block aid to Syrian refugees coming to the state.
The state government already had lost the case in Indianapolis, where a federal district judge found that targeting only Syrians, but not refugees from other countries with the potential to produce terrorists, was unconstitutional and amounted to discrimination based on national origin. The state tried, unsuccessfully, to overturn the ruling.
During a hearing in September on the appeal, two judges seemed more than critical of the government’s arguments. Posner and Judge Frank Easterbrook, both of the U.S. Court of Appeals for the 7th Circuit in Chicago, fired barbs, at times sarcastically, at Fisher who argued — over and over, but not to the judges’ satisfaction — that the governor’s decision was a response to FBI Director James B. Comey’s testimony before Congress that there were “certain gaps” in intelligence about refugees coming from Syria.
“You don’t think there are dangerous people from Libya, from Egypt, from Saudi Arabia, from Yemen, from Greece and France and Germany, which have had terrorist attacks?” Posner asked.
Indiana’s new governor has dealt another blow to his predecessor’s efforts to keep Syrian refugees from coming to the state. Gov. Eric Holcomb (R), who was hand-picked by Pence to succeed him when he became vice president, said in October that he will continue to allow refugees to “find a safe haven” in Indiana, the Indianapolis Star reported.
Critics say the legal battle in Indiana over Syrian refugees and President Trump’s executive order barring migrants and refugees from seven predominantly Muslim nations from coming to the country appear to have a common theme — painting an entire citizenry with the same brush. That’s contrary to legal principle, said David Orentlicher, a constitutional law professor at Indiana University’s Robert H. McKinney School of Law.
“In terms of the principles of our laws, it’s the idea that you be judged as an individual,” said Orentlicher, a Democrat and a former member of the Indiana House. “You know, not because you’re part of a group. … To treat Syrians and Iraqis and Iranians the same is inconsistent with our principle, that we judge your guilt or innocence based on yourself, what you’ve done, not what others have done.”
Legal experts, however, say that the legal challenge Pence faced in Indiana was fundamentally different from what his new boss is likely to encounter as a result of the executive action — perhaps Trump’s most controversial directive so far.
Pence’s decision in Indiana, while also controversial, brought national attention to his conservative state. In an editorial published in the Star in November 2015, Pence defended his decision, saying his “highest duty and first responsibility is to ensure the safety and security of the people of our state.” But his actions were far more limited than Trump’s and did not appear to be an outright ban on refugees. Rather, his administration withheld money to prevent local agencies from resettling Syrian refugees who have already gone through a federal screening process.
The Indiana case also is unlikely to serve as a blueprint for how constitutional challenges to Trump’s order will play out in court, legal experts say. For one thing, federal law governs immigration and refugee issues, and state governments can’t interfere.
As president, Trump has broad authority over implementing immigration policies. The federal government has more discretion to make distinctions based on countries of origin than states do, said Richard Primus, a constitutional law professor for the University of Michigan.
Trump’s unprecedented executive action applies to migrants and U.S. legal residents from Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen. Green-card and visa holders who happened to be en route to the United States when the order was signed were detained at airports over the weekend as administration officials implemented Trump’s directive. Confusion remains over how expansive the order is. On Sunday, Trump’s chief of staff, Reince Priebus, said on NBC’s “Meet the Press” that green-card holders are not affected, contradicting what government officials had said earlier.
Parts of Trump’s executive action had already been put on hold by federal judges in New York, California, Virginia, Seattle and Boston. Scholars told The Washington Post’s Michael Kranish and Robert Barnes that the Trump administration is likely to face more legal challenges, including the argument that the president’s decision discriminates based on national origin.
In Indiana, U.S. District Judge Tanya Walton Pratt found that Pence discriminated by halting aid for Syrian refugees who had already passed screening by the federal government. She also wrote in her ruling last February that withholding funds meant to provide social services for refugees “in no way directly, or even directly, promotes the safety of Indiana citizens,” the Star reported.
“Why all Syrian refugees? Why does Indiana have a blanket screen?” Pratt asked Fisher during an earlier hearing, the Star reported.
The appeals court judges in Chicago heard the case several months after Pratt’s ruling. The heated exchange between Fisher and the two judges, Posner and Easterbrook, lasted for nearly 20 minutes.
While Fisher was arguing that discrimination “is not at play,” Easterbrook chuckled.
“When a state makes an argument that’s saying we’re differentiating according to whether somebody is from Syria, but that has nothing to do with national origin, all it produces is a broad smile,” he said.
Fisher kept repeating one main point — that Pence was relying on statements by Comey about the lack of information about refugees coming from Syria, and that no similar statements were made about people from other war-torn countries.
At one point, Posner asked if Syrians are the only Muslims whom Indiana fears.
“This has nothing to do with religion,” Fisher explained. “This has to do with what’s going on in Syria.”
“Oh, of course it does,” Posner snapped back.
“Oh, I object to that, your honor,” Fisher said.
“Look, if you look at the attacks, the terrorist attacks on the United States, 9/11, attacks in New York, Boston, San Bernardino, they’re all by Muslims. ISIS is Muslim. Al-Qaeda was Muslim. You understand that, don’t you?” Posner asked.
Posner, a Ronald Reagan appointee known for his forthright remarks, asked repeatedly why Indiana “singled out Syrians.” And, repeatedly, Fisher answered by going back to what Comey said about Syrian refugees.
“Look, I asked you whether the FBI director has said the United States is perfectly secure against foreign terrorists unless they’re from Syria,” Posner said.
“No, of course not,” Fisher responded.
The rest of the oral argument was continuing the cycle of the same question and the same answer. After several back-and-forth jabs, Posner said, “Honestly, you are so out of it.”
In an opinion denying the appeal, Posner called the state’s case “a nightmare speculation.”
“The governor of Indiana believes, though without evidence, that some of these people were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States to commit terrorist acts here,” he wrote.
Posner’s words reflect some of the same criticisms and questions faced by the Trump administration.
“That is something that worries the Supreme Court when you take this kind of action that really interferes with people’s lives,” Orentlicher said. “They want the policy to be well-tailored to the problem. That’s a very important consideration for the court, if it decides that there are rights that can be asserted.”
None of the terrorists responsible for fatal attacks on the United States in the past 15 years came from the countries identified by Trump’s order. For instance, 15 of the 19 attackers believed to have been involved in the Sept. 11, 2001, attacks were from Saudi Arabia. Others were born in Egypt, Kuwait, Kyrgyzstan, Pakistan and the United States.
Trump defended the order Saturday, saying it has nothing to do with religion and does not constitute a Muslim ban. The countries he named have been previously identified by the Obama administration as sources of terrorism.
During the campaign in December 2015, Trump called for a “total and complete” ban on Muslims entering the country. Pence, who at that time was not yet Trump’s vice presidential pick, said in a tweet that banning Muslims is “offensive and unconstitutional.”
Ken Falk, legal director of the American Civil Liberties Union of Indiana, which sued the state, said attorneys for Indiana have asked for some time to determine whether Trump’s executive orders have any effect on the case.