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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
Just not the same as jumping in and interacting.
Patrick, I offered almost the same argument on another thread and the Ricochet lawyers said I was uninformed. That’s elitist and simply wrong. I maintain that the Constitution is written in simple language and anybody who desires to can interpret it quite easily. It is a compact among our nation’s citizens, not a globalist treaty.
In that Trump is the boss, you certainly are correct in calling them “Trump’s lawyers”. however that reference does need to be softened some by the fact that his AG, Sessions, was not in office yet, the highest up in Justice was a lady who had to be fired because she wouldn’t enforce the EO, and, as such, Trump was definitely operating with the B team.
I agree with the proposition that non-citizens who are not present on US soil have no constitutional rights. But having said that, if it turns out that they do have rights, I don’t think that discrimination based on religion would be determined on the rational basis test. It seems to me to be closer to the suspect classification category than to mere economic legislation.
Surprisingly, no. In Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), and Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court rejected any special protection for laws of general application that unduly burdened a particular religious group. Those cases led to the Federal Religious Freedom Restoration Act, which established a standard akin to intermediate scrutiny in free exercise cases. But RFRA is not a Constitutional provision. And, ironically, the left now hates RFRA because they are afraid that it might apply <gasp!> to Christians.
In any event, religion has never been held to be a suspect class. I’d like it if it was, but it wasn’t and isn’t.
This is the kind of legal information that I had expected from Mr. Epstein.
Me too. I want to send him an e-mail saying, “I just thought you should know that some lunatic is posting insane comments on Ricochet, using your account.”
Good points, but I believe Trump and the Justice Department should have taken that into account, and delayed issuing the order until they were fully prepared to defend against the inevitable legal challenge. At least when it comes to the facts, courts are only supposed to rule based on what is presented. The ninth circuit panel violated that principle, which is one of the many things wrong with its opinion.
The court just made the US fighting a war impossible. We would be violating the due process rights of all those enemy citizens.
Was he really an idiot? What do you think would have happened if he had said, “Starting on February 15th, a temporary ban…”
What would have happened is exactly what is happening now. The Leftists would be filling every flight leaving a sandy country with “refugees” – 90% military-age male “refugees”, mind you – to get here before the ban started. They know that once they are on our soil, they would never be sent back.
I just read a story that said 1,100 “refugees” have arrived since the judge’s stay on February 3rd – one week! AND, 70+% of them are from one of the 7 banned nations.
Still think he was an “idiot” to try to do it the way he did it? At least he saw the danger nobody else saw. The problem with a lot of Conservatives is they think all Leftists are like the idiots you see on “Watters World” – it is simply not true. The ones in power may be evil, but they aren’t stupid.
Richard,
I have returned from Shabbos to find this article. I am sorry once again to be forced to speak harshly to you. You simply are not up to the politics of this situation. The ninth circuit court is a political snake pit for the left. The intention is to damage the Trump administration. There is nothing about the EO that can’t be ameliorated. We have endured 8 years of Obama using executive authority to circumvent written immigration law, to force an unconstitutional health care mandate by intimidating the Supreme Court, and finally to engage in a major arms control treaty without the constitutionally required 2/3 consent of the Senate.
Enough is enough. Whether there are administrative flaws in the first formulation of Trump’s EO or not, none of the EO is illegal or unconstitutional. Your so called chaos is in the minds of your liberal friends period. The luxury of taking a cheap shot at Trump is over. He is the President of the United States and we need to seriously consider every position in light of the damage it is doing to the United States. By joining the chorus of left wing whining you are adding fuel to this nonsense. A far more significant thing happened last week. A top scientific man came out as a whistleblower. One of the last psychotic acts of the Obama Administration was to try to double down on obviously flawed environmental policy. Every man woman and child worldwide has a stake in stopping this fraud that will beggar them for the next 25 years. Where is your outrage on this issue?
Enough special pleading for liberal sacred cows.
Regards,
Jim
Simply put, this is the best comment I have seen on Ricochet since I joined. Your words make me want to improve my own. Thank you.
In fine lawyerly fashion I must say I adopt @jamesgawron‘s comment #162 as if fully set out herein.
For emphasis.
I agree with your comment here, but I would ask, is this executive order a “law of general application?” This seems to be the nub of the argument. If it is (and I think it is) then there is no religious claim. But if it is held to be a specific attack on Muslims as such, even though its terms are more ambiguous, maybe it could go the other way.
If it was a specific attack on muslims, wouldn’t it have to include all majority muslim nations? The fact that it only involves seven seems to be pretty solid evidence that it’s not.
You are probably right, at least as to those individuals who have some basis to claim coverage under the Constitution (e.g., they have already been given a green card or a visa). Perhaps even as to other foreign Muslims, although I think that is a tougher case and there really isn’t any legal precedent.
Now, is religious discrimination the “nub of the argument”? I think not. The main challenge to the EO is under the due process clause, which is supposed to be analyzed under the rational basis test which I described. I don’t think that anyone really takes the religious discrimination argument seriously, except the Ninth Circuit.
Again, there’s not much authority for this kind of claim. In my view, the targeting of a religious group or religious practice would have to be apparent on the face of the challenged law. In this case, the Ninth Circuit went outside the face of the EO, and looked at things Trump said during the campaign. That is unprecedented and, imo, wrong.
True. Nobody from the countries with the largest Muslim populations (Indonesia, etc) is banned.
I don’t disagree. I only suggest that a court could disagree. Who would have thought that Guantanamo detainees captured out of uniform on a foreign battlefield would have due process rights?