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Why the Ninth Circuit Was Right to Put Trump’s Executive Order on Hold
The Wall Street Journal today published an editorial, “Trump’s Judicial Debacle,” which takes a divided position on President Trump’s notorious Executive Order that has three key components. It first attacks the entire process as a political debacle and social disaster, which it surely is. But as a rear guard action it thereafter attacks the unanimous opinion of a panel in the Ninth Circuit that shut out the government on appeal. It opines that some genuine risks arise whenever courts trench on the legitimate powers of the Executive and thereby upset the delicate balance of power among the three branches of government.
The Journal is clearly correct on the first point: the order is indeed a form of immigration insanity. On balance, it is wrong on the second. To set the stage it is useful to summarize the three key provisions of the Executive Order.
First, Section 3(c) of the EO prohibits the entry of aliens from seven countries — Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — into the United States for a period of 90 days. The ban is categorical and does not distinguish between aliens who have permanent resident status, those who are in the United lawfully under some other kind of visa, and illegal aliens. The prohibition against reentry has a chilling effect on all individuals from these countries in the United States, who know that to leave is to risk not being able to return. It also chills people from other countries that might be added to such a list — Afghanistan, Pakistan and Saudi Arabia, for starters — who fear that they could be frozen out of the country at the stroke of President Trump’s hyperactive pen.
Second, the EO suspends for 120 days all admissions into the United States under its various refugee programs, which strand overseas small children, pregnant women, old people, injured persons, and aliens who have worked on behalf of the United States and have put themselves at risk. There is of course a huge humanitarian crisis, generated in part by the decision of the Obama administration to take a spectator’s role in Syria, and to take deliberately ineffective steps in Iraq, so as to allow our hasty if imprudent exit from that land, paving the way for the bloodshed that followed.
These individuals have a weaker claim of entitlement because they have no prior connection with the United States. But some of them at least present compelling cases to come in. But the ban is universal, and the delays can be fatal. The likelihood of a terror attack from any of these persons has not been quantified in any way. Nor has there been any consideration of ways to allow them into the United States, without giving them free right to go all around the country. None of these issues was considered by the small group in the White House that drafted the program, so there was no interagency evaluation of either the feasibility of the plan or of the magnitude of the security risk that it was intended to address. Nor were there any recent terrorist attacks by anyone in these groups that might have given information as to what kind of ban makes sense against what kind of risk.
The third ban is even more extreme, for it rules out of the United States all Syrian refugees indefinitely, notwithstanding the huge suffering and the chaos. It is possible that some miscreant would sneak through, but again, there is no consideration of the subgroups that might be constrained on this purpose.
The execution of this overbroad order was even worse because the order was announced on a Friday afternoon, with immediate effect and no notice, adding short term confusion to long term disarray. As a general matter, it is at least worth asking why an order this bad should be immune from any constitutional challenge
The first argument raised by the Journal is that the Ninth Circuit failed to take into account the Supreme Court’s decision in the 1952 Steel Seizure Case, Youngstown Sheet & Tube v. Sawyer, in which the Court rebuked President Truman for seizing steel mills throughout the United States on his own authority in order to guarantee, he claimed, a steady source of steel in the war effort. The Journal is surely right when it says that the President’s Power is at its height when “works in concert with Congress,” But the minor premise is hardly clear: does this case fall within that rule
The Journal writes: “The plain text of the 1952 Immigration and Nationality Act gives the executive exclusive authority to suspend “the entry of any class of alien” that “would be detrimental to the interests of the United States.” But a closer reading makes it clear that he has the exclusive authority to make these decisions, but it hardly follows from this broad delegation that he has the unlimited power to decide what he wants in these cases. The phrase “class of alien” does not carry to my mind the ability to designate entire nations as a class of aliens, and all the earlier precedents on this point focus in on smaller groups for shorter times. Nor is it the case that the bare claim of detriment is sufficient to trigger this authority, when there is not even an attempt to explain why it is that the class is defined this way instead of any other way. It cannot be that the text should be read that the President can do whatever he wants for whatever reason he wants, without requiring some clarity. It is therefore perfectly sensible to say that a due process requirement which covers all persons, not just citizens, at the very least means that some real process is due; yet none was supplied here.
There is a second difference of equal importance. The seizure of the steel mills did not carry with it any serious claim of interference with individual liberties. One could argue that the companies should be entitled to receive compensation when their mines are taken, but it is far more difficult to imagine what kind of compensation can be given to those individuals whose lives have been shattered by the Executive Order. The decision to say, think first and then act is perfectly consistent with the sensible requirements of due process. And as the Supreme Court made clear in Hamdi v. Rumsfeld (2004) the governance of various wartime activities is not in the exclusive power of the executive branch but also has a legislative and judicial component. That last is most important in those cases where the question of policy is detention of individuals, which raises serious liberty claims that are not implicated in devising battle plans or procurement plans, or seizing steel mills. It was just this distinction that the Ninth Circuit invoked, and the government did nothing to challenge the balance it defended. Instead what the government did was to repeat the dangerous claim that all matters of immigration and refugees are unreviewable in the courts. A huge number of cases show that this claim is largely unsupportable, and these are duly mentioned by the Ninth Circuit.
The last major argument was the principle of judicial standing, which has a constitutional pedigree prevents two states from bringing claims that properly reside on either permanent legal aliens or other persons. But there are two difficulties with this position. The first is a strong beef against the current law which insists that personal dislocation or pocket book injury is required to bring such a claim. As I have long argued, this is a fundamental misreading of Article III extends standing to cases in equity, which cover disputes intended to prevent a corporation, local government, and by extension, the United States to address cases where the president has overstepped his legal or constitutional authority of both. So on this view any citizen should be able to attack this order to make sure that structural violations of the Constitution, i.e. those dealing with the distribution of powers, do not go without redress.
We cannot expect the Ninth Circuit to take this radical approach. But what it did do was to note that under various precedents the scope of individual injury has been extended to inch the law closer to the position that I have taken. On this view those whose own work depends on their ability to interact with various classes of aliens should have standing to challenge a rule that makes their life more difficult, on the ground that interference with potential advantageous relationships counts. The very dubious substantive decision in Massachusetts v EPA (2007) may well be wrong in declaring that CO2 counts as a pollution under the Clean Air Act, but the decision to allow states to challenge that rule surely count as a strong plus for Washington and Minnesota, given that just that has happened here.
It is to be sure something of a stretch to make that claim for the refugees in the same fashion that it is made for the green-card holders. But there are surely some in that class who can show that they received an explicit promise of assistance which was repudiated, and that is sufficient to standing. It is also the case that the Ninth Circuit did not enter a final judgment on invalidation. Rather, it ordered that the entire matter be reviewed with perhaps some other order that might withstand challenge. Given the preliminary nature of the order, the broader coverage seems appropriate.
The government case was therefore far from airtight, and there the gnawing suspicion that the erratic behavior of President Trump with his ham-handed denunciations might have just spurred the Ninth Circuit to resolve the case against the government for a point that was left unsaid, but which can never be ignored. The President has gone over the top, and his bad faith and erratic conduct poses a risk that would never arise if a steadier hand were at the helm. The man must be contained so long as he continues to hold office.
Published in Domestic Policy, Foreign Policy, Immigration
I doubt it. I watched Ralph Peters on tv a few months back, saying Somalians were the worse at assimilation in America.
In the paragraph discussing aliens not yet on our soil, Epstein writes,
..”it is perfectly sensible to say that a due process requirement covers all persons, not just citizens”.
Reeeeely? So so process is due to anyone, anywhere in the world, who wants to come here? Anyone who is “harmed” because he or she just really ,really wants to be here, who is harmed because he or she would be “freer” if allowed to come here, has standing to sue the US govt. ?
Come ON, counselor!
The Ninth Circuit’s opinion, here, is ridiculous, absurd, and beyond belief. It amounts to nothing more than an assertion that states have a judicially cognizable interest in who enters the state, which overrides federal authority to establish immigration law. And the states’ supposed “interest” is based on pure speculation that some student or faculty might be, yes might be, prevented from access to state universities. If you are waiting for the Ninth Circuit to extend the same deference if Arizona decides that it has an interest in keeping out dangerous criminal aliens – well, don’t hold your breath.
Prof. Epstein’s analysis is equally (hmm, how do I put this while remaining within the CoC?) suspect. The policy embodied in the Executive Order is manifestly and obviously in the national interest and within the President’s authority. The fact that a bunch of lefties went berserk and started stomping around the streets does not make the policy a “political debacle and social disaster.” But even if it did, that would not justify a three judge panel substituting its own political and social judgments for that of the people’s lawfully elected representatives.
Perhaps one can hypothesize a situation where someone (a green card holder, for example) having his or her due process rights infringed. We know that the EO is not being applied to green card holders, but if it were that would only justify a injunction in that particular case. Not a wholesale rewrite of immigration law.
And the immigration situation we have lived with since the 1960s should be considered sanity!? The Wall Street Journal isn’t exactly a source for lawful immigration sanity.
That reminds me of another Mark Steyn quote from the Republican primary comparing Donald Trump and Jeb Bush who encouraged illegal immigration by called it an “act of love.” An act of love! Are other criminal acts also supposed to be called an act of love too or is only this law not supposed to be enforced?
Steyn called Trump the insane man who says sane things as compared to Bush, the sane man who says insane things. Steyn said that when you have a choice between the insane man who says sane things and the sane man who says insane things, vote for the one who says sane things.
I was simply pointing out that this claim in the OP was inaccurate. Also, most violent crime in America is committed by people who were born here and thus have a right to be here. We don’t have to let refugees from Somalia or any other country in.
If only the esteemed courts were as scrupulous in protecting usurpation of the rights of citizens! They fall all over themselves to defer to any statute or arbitrary administrative rule which infringes on rights of us lowly citizens. Here, the left is, in effect, creating a “right” of non-citizens to enter the US. That “right” they insist on protecting! And it is yet another announcement to the world that we are unwilling to defend ourselves from the incremental jihad, like the one underway and well advanced in Western Europe. I bet there are lots of classes on Sharia in law schools nowadays.
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
Huh. Seems pretty straightforward to me. It says ” The President”.
I guess I need my Secret Legal Decoder Glasses to find the words ” A Liberal Judge”…
I’ve read the decision. It’s pretty thin gruel. I’m quite willing to believe the Feds put up a terrible argument, but even if they had made a good one the burden placed on them by the court was virtually undischargeable.
It is interesting to me that the court goes so far to protect these poor individuals from the awesome might of the Federal Government. Would that the courts did this in every case…
(As for the OP’s argument that a brief delay in being able to enter someone else’s country is infinitely worse than nationalisation…)
So, there is a chilling effect. If one is here with a legal visa and on a passport from one of these countries, then don’t leave the US if unable to bear the risk. I see no constitutional issue here.
That sounds like you’re saying the courts need to stop the president from doing stupid stuff, but what ever happened to this . . .
Hogwash. Immigration is a privilege, not a right, always and everywhere. If a president suspends immigration for an indefinite time while the point of origin is in a war of similarly indefinite time, that is executive overreach? This EO is beyond the law but President Obama’s was not?
Judges have no business debating the merits of policy, only its accordance with precedent and the Constitution.
President Trump merits caution, but I did not expect the ongoing anti-Trump hysteria to convince my fellow Republican voters to embrace judicial activism.
So, this circumstance does not magically confer US constitutional rights to these unfortunate people. Their claim is not weaker, it does not exist.
Not even the most dedicated of NeverTrumpers could dream up a better statement to discredit Trump acolytes as favoring authoritarianism.
For a third Mark Steyn reference, about two weeks ago, he interviewed one of the War on Terror interrogators who for his patriotic efforts is constantly sued and targeted, I guess for assassination, via leaks from Gitmo defense attorneys.
Khalid Sheikh Mohammed specifically revealed to him that the only real plan to defeat the United States is through immigration and outbreeding non-Muslims.
Regarding the so-called Syrian refugees that Steyn visited this summer in Sweden, Germany, Finland, and Belgium, about 80% were fit young men: “It’s as if during the Revolutionary War, George Washington and all of the other strapping, young Americans had fled to Canada and left Martha and the women and children to fight the British.”
Some figures say that the number is closer to 97% economic migrants rather than true refugees.
Muhammad died in 632. Exactly 100 years later was the Battle of Tours where Europeans had to defend the continent of Europe from being engulfed in Islam. It took Spain almost another 800 years to kick the Muslims out and there were other Spanish Muslim revolts even after that.
These judges don’t seem to understand that we’re in an actual war and that playing Ramsey Clark social worker is going to get innocent American citizens killed.
The essence here is simply a product of Epstein’s unreasonable mind. Any reasonable person can easily attach ‘class of alien’ to those categories included in the EO.
The President should redo the order, clean up any defects brought about because of the hurried issue, and go forward.
From the Dept of State website on visas:
ENTERING AND DEPARTING THE UNITED STATES
A visa does not guarantee entry into the United States. A visa allows a foreign citizen to travel to the U.S. port- of-entry and the Department of Homeland Security U.S. Customs and Border Protection (CPB) immigration inspector authorizes or denies admission to the United States. See admissions on CPB website.
This is verbatim from frequently asked questions on visas at the DoS website. The CPB is authorized to inspect the foreign national and give lie detector tests. It seems that a lot can be accomplished using existing procedure while taking this through the courts to the Supreme Court after Roberts has consolidated all the cases. It will take a long time. To me it is so outrageous for this court to interfere with a Security Order from POTUS. Let the order stand, for safety , and sort out the legality in court. But to risk the safety of our citizens, which is the first order of the President, is so shockingly arrogant. Richard Epstein appears to take the opposite position here (admittedly I find reading his articles difficult) in that the comfort and convenience of the non citizen living outside of the United States takes precedent over U.S. security. These countries listed, six of which have no functioning government and one with a government calls the USA Great Satan, can not be trusted to give us accurate information on these immigrants.
The only real power of judicial review courts have is when the government is bringing a case against a defendant, and the court invalidates the law under which the case was brought. In that case, the government fails to get a conviction. So effectively, the court has overturned the law. There’s nothing the government can do, because you have to go through a court to get a conviction. In this case, each branch of govt is within its proper role.
But this is a different kind of case. The government doesn’t need a court to convict someone of something. What’s happening here, effectively, is that a court is just giving its opinion about something the president wants to do. Unlike in a criminal case, there’s no inherent reason why it needs the court to agree with it. The court has no leverage over the government, the way it would in a criminal case.
So, if we say that even in this kind of case the president must comply with the court’s opinion, we are saying that one branch of the federal government is superior to another and has the power to overrule it.
Conclusion, no constitutional crisis if Presidents acts?
Correct. The only true constitutional crisis is when one branch tries to take power over another.
Yes, Epstein seems to want to declare what ‘class of alien’ does not include but fails to even give an opinion on what it does include. Not helpful.
If people are “harmed” by the immigration stoppage, and that “injury” is alone enough warrant to reverse the order and keep immigration going … then it stands to reason that this ruling means that immigration can never be halted (because there will always be someone who is inconvenienced or harmed by stopping it).
I don’t like the immigration order. When people have a reasonable expectation of entering the country (they hold legitimate visas, etc.) then I think it’s managerially required for the president to explain and prepare for the change before he makes it … but that’s not a legal requirement, just an observation of reasonable administration.
I don’t want the president to have to explain and justify his decisions to every district federal court, so that they will then allow him to perform his duties as president.
Judicial review does not mean judicial management.
Then it becomes like the busing cases all over again, where judges decided that they didn’t like the way the schools were being managed, so they simply took over the management.
And, more importantly DOES sane things, no matter what he says.
“…looks like it’s based more on policy than on constitutionality. … Look, this is not a solid decision. This is a decision that looks like it’s based more on policy than on constitutionality. There are many, many flaws.” — Alan Dershowitz, Harvard Law Professor Emeritus
Did Epstein and Dershowitz finally switch sides?
Wouldn’t such legal reasoning prevent the Congress from repealing any law when the result would be harmful to some citizens somewhere in the USA?
A good question. The first rule of holes is to stop digging, right? And as with medicine the rule is do no harm. Our government and political system is an organic institution if we break it utterly we will not have healed it will have killed it. I am no anarchist and therefore I can not think that killing our whole system is the way to save it. Anymore than prescribing death could be considered the cure to any disease.
At the heart of the problem we have in our political system is the desire by both political parties to favor victory over process in the desire to accomplish their goals. This leads to everyone looking for shortcuts that bypass the organic methods of enacting policy and law. The way for Trump and the rule of sanity to prevail is to step back and reestablish a norm of utilizing the democratic process.
He has the support of the whole legislature. He should work to enact laws, and then give the appropriate agencies the time to establish regulations based on those laws. The solution is not glamorous or action packed, and maybe it isn’t the kind of all out fist fight the Trumpistas want to see. But, governing and campaigning are two different things. Obama was a campaigner and so he was bad at governing, Trump in this case is acting much the same way.
I like Epstein, and I dislike Trump, but I have to say that on this issue, I agree with Trump. Immigrants don’t have equal rights to American citizens. I don’t care how inconvenienced they are by the EO, our needs come first in this regard. I feel bad for the refugees, but I’d rather help them in their own country than let them into mine. Additionally, there are plenty of other nations that seem to want to take them, so let those nations take them. We already have a welfare state, we don’t need to add more people to the rolls. We already have security threats, we don’t need the increase risk to ourselves.
I have to leave for work, I actually would like to spend some time debunking most of this article, but I don’t have the time now. I’ll look at it later.
I’m sure the Ninth’s next argument is that they did weigh the harm of the travelers versus the alleged harm of allowing terrorists into the country. They asked by what measurements the Trump administration was calculating the harm? And when the original judge (Robart) and the panel asked those questions, the government failed to provide any answer, the judges essentially took that as a “zero threat” answer.
Which strikes me as circular. After all, if your stated reason for the EO was to review and assess the threat level, of course you’re not going to have those assessments already in hand. When the judges asked the government to offer their measurement of the threat level, the government should have said, “Sure! So let us pause immigration while we assemble that information.”
“President has gone over the top … if a steadier hand were at the helm. (Trump) man must be contained…”
And I suppose Trump is worse than when #1 greatest president Abraham Lincoln who suspended habeas corpus?
Instead of saying, “You, sir, are worse than Hitler,” Greg Gutfeld can now say, “You, sir, are worse than a two-headed Lincoln-Trump.”
…
“You can’t stop him, you can only hope to contain him.” — Constitutional law now based upon Dan Patrick catchphrases
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How about containing the Democrats? Obamacare for example?
I guess this hidden containment clause only affects Republicans.
In any sizable population, there will be some criminals, even among tourists probably. Are we going to close the country because we can’t tolerate a minuscule increase in crime? So we would lower crime marginally, but we would lose a lot of other things in the process. Open exchanges build prosperity. Closed societies deteriorate faster.