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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 Judiciary is already way over the line on this one after the Executive has made the adjustments to cover where it was over the line.
I basically agree that this reflects much of what has been going on. In this case, however, it is the Judiciary acting beyond legitimacy to stop an exercise of appropriate Executive power, albeit with defects initially. Harm to states, businesses, or residents of the US is not the measure to determine constitutional Presidential authority.
Exactly backwards, James. Ignore and implement would restore adherence to the constitution. He should go all Stonewall on the judiciary. Jackson recognized the danger inherent in Marbury v. Madison. Does anybody read history anymore???
The headline of this post had me imaging that I’d somehow been redirected to the Onion.
I do not understand, sorry. The law has already been enacted. He is merely following the law. This is kind of strange because we have a law that has not been questioned since 1952 with two branches of government approving, yet the other single branch says no. One can argue implementation until the cows come home, but that was resolved within a couple of days…much quicker than most govt fubars. How does one argue the POTUS authority?
Somebody help me out here. Congress has the sole power to levy duties and tariffs. It may grant the President administrative powers as it deems necessary. Congress also has almost plenary power to regulate immigration, but it may delegate certain things to be administered by the President. Congress did just that when it passed the 1952 law to give more power to the President in these matters. Perhaps the States have some remote standing to sue, but just because Dr. Epstein thinks it’s a ‘bad’ idea doesn’t make the EO illegal. This article falls into a big pit of penumbra to make this case and I really expected more from him.
Dr. Epstein does a good job, but it seems like his stance on immigration tends to cloud his judgment on judicial decisions. I really don’t understand how the conclusions he reaches don’t at least defer to the President’s authority – as given by Congress no less – and leave the burden on the States bringing the suit. It should have left the EO in place until litigation was done. Plus, at least two portions of the order are temporary.
There is a process in play. To ignore the ruling as some suggest would be to compound any problems that exist with the ruling. Look at the logic of this case. The order would be in effect for 90 days. What would happen in 90 days that isn’t happening now? What does this order actually prevent in real terms?
The legislature and the executive can work around the courts by passing laws, to clarify the ambiguities that have been used to challenge the EO.
Up to 120 days while we assess our vetting procedures? How is that closing the country?
What ambiguities are you referring to?
That’s a policy decision, not a legal one. Not for the courts to decide.
The Ninth has introduced outcomes, typical Leftist behavior, where their role should be limited to looking at the process. The Court has introduced the ambiguity, if one insists on calling it that. It’s really just poor execution of judicial responsibility.
There already is a law in place saying the President has the authority to suspend immigration for suspect classes. Why does he need to have another one passed?
Since when do non-citizens have any constitutional rights whatsoever? I am very disappointed in Professor Epstein, who I used to think was one of our eminent thinkers. Come to find out he’s just another NeverTrumper. I’m not a lawyer, but the law couldn’t be written more plainly. The president has the power to decide at his discretion who gets to enter the country and who doesn’t. Period. No left-wing moonbat fluffhead, even if he wears the robes of a judge, gets to say otherwise. I’m getting pretty sick and tired of this stuff polluting our main feed. I’d like to know at what point will the NeverTrumpers finally realize who our real enemy is, and realize that you are helping the left every time you write articles such as this.
If there’s terrorist attack or terrorist attacks from someone or some group who was let in the country by one of these judge rulings, I just can’t imagine what the reaction is going to be.
We better keep saying our prayers while the First Amendment is still active…
Nothing in particular to add, @RightAngles, but a mere “like” wasn’t emphatic enough.
The District judge and the Ninth Circuit ruled using policy outcomes not legal process. Trump must act to avoid erosion of the President’s constitutional authority. Coordinating this through action involving Congress smacks of an endorsement of the Court’s wrong ruling.
Same here. I’ve gone from more than a modicum of respect for Epstein to complete dismay in one post.
Trump is no novice to legal actions. Just as the protagonists shopped the courts to find the surest place to file their suit, perhaps, now that we have an AG, Justice Dept might be able to shop for the sure place to get an opposing ruling. That would most likely necessitate the Supreme Court step in to clarify. OTOH, Justice could ask for emergency ruling without another suit. I read on Powerline a commenter suggested asking Ginsberg to recuse herself because of statements made against Trump in an interview with the NY Times. After all, the 9th circuit is claiming the ability to use statements made by Trump on campaign before taking oath of office, as evidence this ban is against Muslims, therefore unconstitutional, even though it doesn’t ban Muslims, as evidence the 85% of the worldwide Muslims who are not banned, even temporarily. Of course, the Justice herself would be the one deciding recusing herself, but it could have the effect of making that 9th circuit argument moot.
This is all getting to much in the weeds. I think I’ll just sit back and wait for Trump to crash the gates somewhere. Subtlety is not his normative behavior.
Yes. Trump has many options, fun to guess what direction he takes, Sessions is one of his closest associates, apparently, and a good legal head.
And possibly more importantly, how does a minuscule increase in crime equate to Boston, San Bernardino, etc.? This is an extremely foolish description of the effects of unbridled, un-vetted alien acquisition.
And the original point comparing crime statistics is way off topic.
According to Kevin Williamson’s book The Politically Incorrect Guide to Socialism and my own calculations, Minnesota is about 30+ times better at assimilating Somalis as compared to Sweden — “…there are about 800 businesses run by Somalis in Minneapolis, compared to only 38 in Sweden.”
They’ve got it worse over there…
I think Trump is simply setting up the optics. One side wants to protect the American people and the other side could care less about them. Even non-terrorist related immigration is hurting the poor and helping the rich (see Claremont Review of Books, Fall 2016). So whatever the actual legal deal, Trump will emerge as the champion of the people. Will it matter? I doubt it. The administrative/judicial/one viewpoint state is already too big to fail. The country may fail first.
Who you gonna call when a 17% majority in California which votes for no benefits for illegal entrants is overturned by one district court judge?
So yes, it is all Kabuki. Not sad, tragic.
Conservative Princeton legal scholar Robert P. George and international human rights lawyer Angela Wu Howard examine the EO here.
Sadly, with technology and terrorism, the word “miniscule” has no place.
And Trump is not asking to “close the country.” A four month ban to improve vetting from seven failed states is not closing a country.
Why should OUR side give in to hysteria? Doesn’t the left handle that already?
I appreciate the thoughtful response. I will reply later after I do a few hours of work. Society may be melting down around us and in a year or 2 it may all be a moot point as we all become lowgrade functionaries in our local warlords dominion, but as of right now I gotta pay the mortgage.
But, that is what is in dispute. Is he following the law? And then there is the question of how it works with other laws dictating the government visa program. The ruling though was not on the merits of the EO it was on the merits of the Injunction against its implementation placed by the lower court. The lower court put that injunction in anticipation of a further review and argument on the merits of the EO.
So how does “new legislation” figure into this? The government is being challenged on its interpretation of the law. The Trump administration says X and the State of Washington says Y. Trump and the congress can address all of these claims made by the State of Washington with new legislation specifically addressing their claims.
Just look at Mr. Epstein’s argument about the definition of “class of people”? You say it clearly can mean the entire population of a whole nation, he says it must mean something more narrow. The law just says “class of people” a new law could define that more clearly.
Frankly I am hopping for a Mad Max Style desert waste land where we all ride around in crazy cars.
I appreciate your overall point but I don’t think it’s really right to compare political terrorism to common crime.