Feb 16 2017

Executive Orders, lawsuits, and the right to travel

[D]ue process requires… notice and a hearing prior to restricting an individual’s ability to travel.

(9th Circuit Court of Appeals, Order on Motion for Stay, February 9, 2017, State of Washington and State of Minnesota v. Trump)

President Trump’s Executive Orders prohibiting entry to the US by citizens of specified blacklisted countries and cutting off all Federal grants to designated “sanctuary jurisdictions” that decline to spend their local funds and direct their employees to enforce certain Federal immigration laws have prompted a wave of litigation by individuals and, significantly, by states and cities across the US.

We welcome the increased public interest in Federal government attempts to control the free movement of free people, the new activism on the issues of freedom to travel, and the new willingness of states and municipalities to challenge restrictions on their residents’ right to travel.

There’s been much discussion and analysis of the implications of these lawsuits for these specific Executive Orders. Relatively little attention has been paid, however, to the implications for litigation over other ongoing and emerging issues of freedom to travel of what is being said, and by whom, in the litigation over the recent Executive Orders.

Here are some of our thoughts, from the trenches of more than 15 years of legal and political struggle for the right to travel, on what these cases may portend:

Greater recognition of the right to travel. As quoted at the start of this article, a panel of the 9th Circuit has found explicitly that, “due process requires …  notice and a hearing prior to restricting an individual’s ability to travel.” This should go without saying as a Constitutional principle, and it’s exactly what has been argued in no-fly, blacklist (“watchlist”), and other denial-of-travel lawsuits. The 9th Circuit has been edging toward this position, finding in several cases that due process has been lacking, and that restrictions on air travel implicated due process rights even if in theory would-be travelers could have walked on water or used other hypothetical means of transport. So far as we can tell, though, this is the most explicit and unqualified statement to date by the 9th Circuit or any US appellate court of a general right to notice and a hearing prior to any restriction on the ability to travel. It’s also significant that the opinion applies this notice and hearing requirement to any government action “restricting” the ability to travel, and not merely to total denial of travel by any means.

It’s also worth noting that the same principle should apply at least equally to “carrier sanctions” and the pre-existing and continuing denial of permission for asylum seekers and other people without papers to board flights bound for the US as to denial of entry on arrival in the US. A “hearing” before an airline ticket sales or check-in clerk on the adequacy of one’s travel documents does not satisfy the requirements of due process.  We hope that those who have challenged the Executive Order barring entry to the US at US airports will make their next legal challenges to the ongoing ban on boarding flights from foreign airports to the US.

States’ and cities’ rights not to be conscripted into spending local funds and using local resources to carry out Federal requests. The 10th Amendment and other legal issues raised by cities’ and states’ refusal to order their police they hire and pay for to spend their time enforcing Federal immigration detainer requests in “sanctuary” jurisdictions are directly applicable to use of state and local law enforcement resources to detain or arrest travelers on the request of TSA checkpoint staff.

Why would a state or city want to pay and direct its airport police to stop its residents from passing through TSA checkpoints and boarding airline flights, just because the DHS decides that it doesn’t like the way the state handles its issuance of drivers licenses and state ID cards?

The TSA has only a handful of law enforcement officers, and relies on state and local police at airports to enforce its (standardless, secret, extrajudicial) orders to travelers. Without the “muscle” provided at state and local expense by their airport police, how will the TSA stop people from flying?

States and localities that don’t want to participate in the national ID database being set up under their REAL-ID Act should act now to enact laws forbidding the use of their funding or deployment or use of their law enforcement officers to interfere with their residents’ air travel. “Sanctuary city” laws give them an easily-applied template for legislation. Make the Feds send in squads of Federal Marshals to do their own dirty work of REAL-ID Act enforcement if they want to punish residents of states they don’t think are sufficiently “compliant”. In the current political climate, we can imagine some states competing for the honor of “least compliant” with Federal requests for them to restrict their residents’ rights.

State standing and willingness to sue to defend residents’ rights. Both Washington and Minnesota sued to defend their residents’ right to travel, using as one legal hook among others the interests of their state universities in associating and exchanging ideas with foreign teachers and students. They were joined by Massachusetts, Pennsylvania, New York, California, Connecticut, Delaware, Iowa, Illinois, Maryland, Maine, New Mexico, Oregon, Rhode Island, Virginia, Vermont, and the District of Columbia. The 9th Circuit upheld their standing to sue, on the basis of arguments that would apply equally to many other Federal measures that would impose document or permission requirements or other restrictions on the right of state residents to travel.

The REAL-ID Act and the right to fly without ID. The next battle in the fight for the right to travel will be over the convergence of the REAL-ID Act and TSA demands for ID to fly, as we discussed in comments we filed last month on the TSA’s back-door proposal for REAL-ID Act and ID-to-fly enforcement to begin with residents of states the DHS deems insufficiently compliant and who have don’t have other ID or who have lost or forgotten their ID or had it stolen.

For more than a decade, the fight between Federal and state governments over the REAL-ID Act has played out in legislative debates. Now that the outlines of the likely REAL-ID Act litigation are becoming clear, it’s time for states to prepare to defend their residents’ right to travel by common carrier.  Interesting, one of the states with a strong bi-partisan consensus against participating in a national ID database, and which is currently debating what to do about the REAL-ID Act, Minnesota, is one of the states that led the litigation against the #MuslimBan Executive Order restricting travel.  And Minnesota is far from alone: Few states have complied with the REAL-ID Act, or want to do so.

Rather than waiting until the Feds start trying to prevent residents of noncompliant states without ID from flying, as they are threatening to do starting in early 2018, states should start preparing their cases now, and bring preemptive Federal lawsuits to block Federal interference with their residents’ right to travel or Federal coercion of states to enforce restrictions on air travel by residents of blacklisted states. The litigation over restrictions on travel by citizens of blacklisted countries, and over immigration “sanctuary jurisdictions”, gives them a road map for these lawsuits.