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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
“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. ”
Actually he needs to keep going as much as possible. Perhaps not regarding this immigration issue but on as much as he can. Steadier hands have let the social scientists bring our country and world to the brink of destruction as far as I’m concerned. Steadier hands have failed and Mr looney tunes is the only person we have who seems that will fix critical issues. Lord knows all the political parties would certainly fail.
It is the corrupt federal judiciary – and no one else – who is breeding a constitutional crisis. President Trump must break them.
How does President Trump break judicial review?
What’s left after it’s broken?
If the SCOTUS gives it the big nix, there are only two options: A) comply, or B) ignore and implement. Which would seem to be a constitutional crisis of the highest magnitude.
The judiciary on the federal level needs to be brought down several pegs. Wayyyyy too much power. If it comes down to a “John Marshall has made his ruling…” moment, then it needs to happen. The judiciary has seized power for itself the Constitution never granted it, namely, the power to in practical terms to rewrite it as judges please. They need their eminations and penumbras crammed where the CoC won’t allow me to say.
President Trump breaks judicial review by ignoring and implementing, which he has a perfect constitutional right to do. The Constitution does not grant the Supreme Court the right of judicial review. Judicial review is a power that the Supreme Court unconstitutionally granted to itself via Marbury v. Madison in 1803.
We are headed to a crisis of the highest magnitude, whether it’s constitutional one or a different sort is yet to be seen but mark my words, the crisis is coming in some flavor during this administration.
Pat Buchanon wrote an article today about what Mike is referencing but I’m not sure what the correct course of action is. I doubt the many serious people ( despite a few ideologues) around the president will let him make a second and far worse error about this issue. Let’s watch and see shall we. Perhaps viewing this less breathy and full of impeachment as professor Epstein seems to be will lessen the anxieties about a very serious issue.
I do know who my enemies are and despite his many flaws and odd proclivities, our president is not one of them. Thank goodness for the supreme court nomination(s) being done by President Trump instead of a serious lefty.
I don’t remember you arguing that in the run up to the Obamacare case, but I concede that my memory isn’t perfect.
I’ve seen that argument before but admit that I’ve failed to really understand the issue. If there were no such thing as judicial review, what recourse would there be when a law violates the Constitution?
Trump should now put a hold on refugees from all countries, as he should have done in the first place.
I’m most disturbed by the “due process for the world” concept that this article embraces.
Time for A Man for All Seasons again
“William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
Seriously. I know our governing docs are pretty kick ass, but they only apply to US citizens, and by our own generosity and good will, anyone legally (and sometimes illegally!) residing in our country or her provinces.
I know we really like that rhetorical “inalienable” rights thing, but I should think that the last 8 years, the threat of Hillary, and the inane left should emphasize for all of us that “inalienable” is dependent on us and governments alienate them all over the world every day.
If the court issues a ruling, and he ignores it, it’s a constitutional crisis. If the Congress passes a law, the president signs it, but fails to enforce it by choice, it’s what, exactly? Okey-dokey?
I’m not defending Trump here. Ham-handed might be too polite a term for him (although I thoroughly endorse the concept of breaking some stuff that has helped create the mess we’re in, in terms of the size and scope of government, including the courts), but if the Executive branch can ignore Congress and that’s OK (or was for 8 years), why the knicker-twisting now when it’s the Courts? In either case, the president is ignoring either the law or a lawful order of the court (absent appeal).
While I agree with our dear Thomas More in this dialogue, I also think judicial review has overstepped into rewriting the Constitution (“right to dignity”?) and needs to be curbed. If the judiciary checks the executive, Congress, AND the will of the people, who checks the judiciary?
Clearly, impeachment is not a tool our Congress would like to use.
Therein lies the root of the problem. The fundamentally partisan and corrupt judiciary is taking the legitimacy of the state down with it because there is no effective or acceptable check to its power.
Its going to happen. This can’t keep going on much longer. I believe the Obamacare rulings blew the roof off the rule of law like Chernobyl and the exposed core of pure legal nihilism is blasting its toxic radiation all over the world.
Even Richard is being poisoned by the elephants foot, as his entire essay is one where he is saying that the courts are right because he disagrees with the political questions and the judgement that are clearly invested into the other branches of the government.
And when the courts are utterly out to lunch?
I think our brilliant legal scholar let his emotions dictate here. Epstein in over the top on Trump’s decision and it colors his view on this decision. I think the executive order was politically inept and unnecessary, but is the sort of thing novices do especially in these circumstances where the Cabinet is not in place and all senior bureaucrats who are in place were appointed by Obama and can’t be trusted. What the whole debacle tells me is that Trump must gut the top, remove anyone near the top from Deputy Assistant Secretaries and office heads up, cut the rest with a chainsaw after his people are in place long enough to know what they’re doing. His people must make sure they know who they are promoting from within and then must use them. His priorities must be taxes, regulatory reform including replacing Obamacare and budget cutting these he does from the top down with White House leadership. This was not such an issue. It should have been routine review and could have been done at a lower level with instructions to the field to review vetting and to provide recommendations on how to proceed prior to approving any new travel in circumstances where there was some risk. Even so Trump will come out ok as he’ll win in the Supreme Court and can use that win variously, any incident wont be his and he still can implement extreme vetting.
Sure, the court decision was good but the highlight of the day was watching Hannity hyperventilating about it with his “legal experts”. Rarely does one get to experience such pure enjoyment watching TV. I would put it almost at par with Tom Brady’s unbelievable comeback last Sunday.
Fighting and inflammatory words encouraging a destructive course of action. But then Trump himself is destructive.
I’m not a lawyer, but I know this statement is untrue. What about the car and knife wielding Somali refugee who attacked students at Ohio State this past December.
I read David French’s article in NR after the oral argument, and he said Trump had a strong case and turned it into a dumpster fire. That was before the decision was announced. I think John Yoo alluded to the same thing.
Daniel Horowitz, over at Conservative Review, asks the burning question: “…does a Somali jihadist, who has an affirmative right to immigrate, have to bake a cake for a gay wedding?”
Sooo there were about 15,700 murders in the US last year and some of you want to change the whole identity and politics of the country because you are really really worried that that number may rise to say 15,750 because of a rogue refugee or two who slipped through? If you were really concerned about crime, you would ask for measures to lower the indigenous US murder rate.
For those of you calling for Trump to ignore the courts and strike off on his own, what will you do when in 2020 he loses to Elizabeth Warren and she then goes on to ignore the courts rulings about here new Anti-Gun EO? Where will you hide then the laws all being laid flat?
I find these reactions amusing, do you people see yourselves in the mirror? Are you wearing pussy hats? Maybe you should because you mock the leftists having hissy fits about Trump and here you are doing the same darn things.
Your not wrong. But the die is cast at this point. The courts are broken and taking down the entire system with them. The inevitable end game of the doctrine of judicial supremacy is being reached.
If the courts back off at this point and try to kick the can down the road, will the left accept it? If the courts double down on their self-declared unquestionable power of arbitrary rule, how should the other branches react? How should the people react?
What is the path out of this maze?
The last paragraph of this post says it all: the court relied on a point left unsaid. In my experience, a court is supposed to decide on the record.
And , Trump has gone “over the top”? “Erratic” behavior? I don’t think so. He ran, and won, by saying he would do exactly this.
The 9th Circuit has attempted to overturn the results of the election.
Just the fact that non-immigrants commit crimes, too, is no reason to admit a class of alien which our enemy brags about having infiltrated. Yes, even with little children, most recently. They can sport a suicide vest as well as or better than an adult. Women, certainly, a la Bloody Bride of San Bernardino.
It’s funny, really: the Left and their fellow travelers accept unquestioningly any statement by Muslims about the “Religion of Peace” —
but pronouncements by these brave committed (you gotta admit that!) warriors of ISIS announcing that they’re getting their operatives into US via immigration and refugees are dismissed as , awww, just crankiness, they don’t really mean it….
Fpr months during Omega’s reign of terror, I used to write, “America, honey! you awake yet?”
Now, we ARE awake; the election and the polls concerning Trump’s campaign promise fulfillment show that.
But did we sleep too late?
We’re struggling into our boots while the mercenary night-soldiers of the Left already march in perfect, lethal formation.
Apparently Trump read the portion of the law that said, “(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 … suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
And then said: “A bad high school student would understand this.”
I agree with Mark Steyn. Of course, the guy from Washington state is a “so-called judge.”
Steyn pointed out that when Arizona wanted to do something about immigration, the judges said that that was a federal matter. (Now it seems to be federal manner that can only be handled by states or some other group?)
Steyn points that the government’s advocate was basically incompetent with the judges asking questions that had nothing to do with anything unless the judges wish to create their own laws stating, “A judge is in no position to know whether somebody from Somalia is more risk to the United States than a someone from Sudan.”