By Regina Jefferies
The Office of the Solicitor General found itself in the position of defending an Executive Order targeting a broad group of individuals whom, the president claimed, should be subject to broad restrictions in the interest of national security. As the office responsible for representing the United States before the Supreme Court, the Solicitor General argued that “[p]rompt and decisive action was necessary” because loyal individuals could not be separated from disloyal. Relying on that position — that the restrictions were justified based upon official military assessments — the Court accepted the government’s reasoning and ruled against the petitioners. Yet, it turns out, the government’s argument was demonstrably false; the Solicitor General knowingly misled the Supreme Court in order to obscure the fact that the Executive Order was based on racist ideas, rather than reasoned judgment.
This is not some imagined dystopian future report on the result of the recently argued Trump “travel ban” case now before the Supreme Court. Nor does it reference Solicitor General Noel Francisco’s May 1 letter to the Clerk of the Supreme Court conceding that he provided incorrect information to the Court during oral arguments in the “travel ban” case.
Instead, the description captures the conduct of the then-Solicitor General before the Supreme Court in the early 1940s, in Hirabayashi v. United States and Korematsu v. United States, criminal cases in which the convictions were overturned decades later after the Solicitor General’s conduct came to light. As shamefully as the U.S. government conducted itself in those cases, Hirabayashi and Korematsu provide only the prologue for a disturbing pattern of misrepresentations (intentional or not) by the Office of the Solicitor General in immigration and national security cases spanning decades and political parties. Time and history, it seems, march on.
Prior to Francisco’s May 1 letter, the Office of the Solicitor General had issued corrections in at least two additional high-stakes immigration cases before the Supreme Court, cases with wide implications for individual liberty and the rule of law – Demore v. Kim and Nken v. Holder.
Demore, decided in 2003, involved a challenge to the government’s blanket policy of denying bail to immigrants imprisoned while appealing orders of removal. In its briefs, the Solicitor General’s Office reported incorrectly that an individual remained in immigration detention on average around four to five months. In upholding the government’s policy, the Supreme Court explicitly relied on the Solicitor General’s representations. Then in 2016, the Solicitor General issued a letter to the Clerk of the Supreme Court flagging the error and apologizing for providing false information, while noting that the actual time of detention was just over one year, double than what was originally reported.
We will likely never know the effect of the misrepresentation in Demore on the Court’s decision. But the Solicitor General’s misrepresentation a few years later in Nken proved to be more clearly pernicious. In Nken, decided in 2009, the Court was asked to consider whether an immigrant’s removal during a pending court challenge can constitute the “irreparable injury” necessary for obtaining a stay of removal. In siding with the government, Chief Justice John Roberts cited the Solicitor General’s brief claiming that the government had a “policy and practice” of facilitating the return of removed individuals and reinstating their prior immigration status. Yet this too was false, as brought to light following the court-ordered release of internal Justice Department e-mails in Freedom of Information Act litigation brought by the Immigrant Rights Clinic at New York University School of Law. As acknowledged in Deputy Solicitor General Michael Dreeben’s correction letter to the Court, the government had no official policy or practice of facilitating return and restoration of status.
So where does Francisco’s May 1 letter to the Clerk of the Supreme Court fall in this line of errors? It is a remarkably short and simple letter. It portrays Francisco as having simply recited “on September 25” when he meant “on January 25.” However, Francisco’s misstatement in fact cuts straight to the heart of the argument before the Court: whether President Donald Trump’s travel ban was motivated by anti-Muslim animus. On January 25, 2017, before issuing the first version of the travel ban, Trump gave an interview claiming that it was not “the Muslim ban.” Trump’s September 25, 2017 tweet that the travel ban “should be far larger, tougher and more specific-but stupidly, that would not be politically correct!” directly contradicts the Solicitor General’s assertion that Trump’s January 25, 2017, statement that the first travel ban was not “the Muslim Ban” made “crystal clear” the neutral basis for the later Executive Order. Thus, rather than simply clarifying dates, the mistake lays bare the indefensibility of the Solicitor General’s position, as detailed by Joshua Geltzer in Slate and amicus curiae from the Roderick & Solange MacArthur Justice Center in a May 3, 2018 follow-up letter to the Court.
As required by Court procedural rules, Francisco also served the letter to counsel for Respondents challenging the travel ban, Neal Kumar Katyal, who was the acting Solicitor General in 2011. Coincidentally, it was Katyal who publicly acknowledged that the Office of Solicitor General provided false information and misled the Court in Hirabayashi and Korematsu. In that public admission, Katyal exhorted the Office of the Solicitor General to take this history as an “important reminder that the ‘special credence’ the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor . . . .”
The Office of Solicitor General would do well to heed that call, just as the Court would do well to consider this history and the current factual developments as it considers how to decide the travel ban case. These lessons suggest that the Court should strongly reconsider the degree to which it defers to the Solicitor General’s representations in high-stakes immigration and national security cases, particularly where past deference has proven entirely misplaced.
Regina Jefferies is a Teaching Fellow and Scientia PhD Scholar at the Kaldor Centre for International Refugee Law. She helped to lead the rapid-response team that mobilized attorneys at Minneapolis-St. Paul International Airport to protect people affected by the Jan. 27, 2017 executive order barring immigrants from seven Muslim-majority nations.
This article was first published in Just Security, 23 May 2018