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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
Have you asked Kate Steinle’s family this question @marionevans? Or the victims of Jihadist attacks in Europe? As was asked of Nancy Pelosi, which of your family members is expendable for your belief that we shouldn’t try to control immigration?
Is that a legal term? “Over the top”?
You will never vet sufficiently with 100% certainty. Some bad people will slip through. It’s law of numbers.
So why try, huh?
Pretty sure it’s not the gun owners who’ll need to be fearful if a Warren anti-gun EO comes to life.
@richardepstein, just curious, are you going to come back and engage regarding the comments on your post?
I don’t know, I am reading that people are mainly concerned about violence. Seems like a logical way to think about it. Interesting sterilized term “un-vetted alien acquisition”.
Reagan “broke” the air traffic controllers. Did he “favor authoritarianism” in light of that act? Or did he, and might Trump, break what needed breaking?
That’s not an argument. Families of gun violence victims want to curtail the second amendment. We don’t only poll these people when we decide.
Point was we have always tried to vet them and should continue. But there is no 100% vetting imo.
Reagan exercised authority over employees of an agency which exists under the branch of government which he led. So, no, he didn’t “favor authoritarianism”, nor is your example even remotely analogous. The judicial branch is entirely separate from – and equal to – the executive branch and the president has no constitutional authority to “break” it.
Judicial branch is equal to, not superior to, the executive branch.
Of course, which says exactly nothing relating to the particular point.
I’ll hold off on a whole-sale rejection of Professor Epstein for a good long while, but I do feel quite out of sync when I disagree with him in toto.
I usually find one and more points where I feel he opens my eyes and can persuade me to consider another point of view, even if I don’t change my mind.
On this topic, I disagree.
Right, I wasn’t saying that I was unfamiliar of the argument against judicial review. I was just pointing out that it was much less commonly put forth by the right back when we were looking for the Supreme Court to strike down Obamacare.
I have liberal friends who make these arguments. You must be a libertarian.
And an open borders one, I bet.
The 2nd Amendment is a constitutional protection on the citizen’s possession of guns.
Immigrating to our country has absolutely no constitutional protection whatsoever.
What’s that phrase that’s been coming up lately? False Equivalence.
We get to curb immigration to this country in an attempt to curb rates of violence because that is operating under our constitutional law. We are not allowed to remove guns from the population in order to curb rates of violence because that is not allowed under constitutional law.
We get to curb immigration from countries whose children tend to become radicalized here. We do not get to deport or revoke citizenship from people born here who were radicalized. One is constitutional, the other is not.
We should have stopped immigration from certain countries after 9/11. We should not have passed the “Patriot Act” (a violation of citizens’ right to privacy as outlined in the constitution) in order to keep us safe from “suspected terrorists” who should not have been here.
Have I told you how much I love you lately, Larry? Today, I even love you because you’re a lawyer!
On a note related to your comment, John Eastman called this a “judicial coup” this morning on Prager’s radio show. We live in “interesting” times.
I get the feeling that you value stability quite a bit. I don’t want to cause offense, but I’m not certain there are many ways to ask this question:
Is it possible you value stability more than a constitutional government? Because these arguments do not address whether the judiciary overstepped. You briefly mention such in another comment, but many people have posted law that supports the legality of Trump’s EO (outside the Green Card issue). Even this ruling was unable to point to law in reaching its conclusion. I don’t see you engaging in those discussions, but rather relying on the court’s decision.
Do you accept the possibility that the court could overstep its boundaries? And if it has overstepped its boundaries, are you willing to undergo a little bit of instability in order to restore its proper place in our government?
It may be that you can not have both either at this time or at some point in the near future – a stable country and a constitutional government.
I think our so-called “vetting” is a myth. Most recently, we have learned that our “vetting” consists of taking in people about whom we know nothing at all, except that Australia won’t take them. For the last 8 years we have been trusting an Administration to screen out the Islamic Extremists, when we know that the Obama Administration wouldn’t even acknowledge the existence of Islamic Extremists.
So, perfection is the enemy of the good? Since we won’t succeed 100%, why bother even trying? So, the law of numbers supersedes the President’s authority to control our borders and ensure our safety? Not all these questions are aimed at you, Marion, but this hole seems to be getting deeper. The root order was simple, the authority for it was simple, the goal was public safety, yet so many seem to lean towards quibbling.
It was an example of a trend, Jaimie.
I mean where is the right to privacy outlined in The Constitution?
I’d say your right, but you didn’t say anything.
So, I was mistaken. My apologies.
CM, I think you have the correct position, you just need to
get the right Constitutional source, not privacy, I’m thinking something like ‘unreasonable search and seizure’, 4th Amendment.
There is no doubt that Professor Epstein has more knowledge of the law, precedent, and procedure than I could hope to gain over the course of my life, should I dedicate my life to it.
However, it also appears that he suffers from Trump derangement syndrome. Witness his ridiculous call, during the last Law Talk podcast, for Trump to resign, a call that prompted John Yoo to attempt to kindly diffuse the foolishness.
Mr. Epstein also gives one the impression that if you asked him to “tell me all you know about Islam,” he would prattle on and on saying nothing, and revealing himself to be an ignoramus. But one of supreme confidence and righteousness.
It is unfortunate that we are all so flawed.
It’s pretty clear that Trump was “exercising authority which exists under the branch of government which he” leads when he issued the EO – national security. If his constitutional authority is usurped, how is it “authoritarianism” for him to do what is necessary (fine, “break”) to reclaim that which is constitutionally his? He’s not going to “break” the judiciary. He’s going to break those who’ve gone rogue with regard to THEIR constitutional authority: the idiot judge in Seattle (read his ruling on the Amherst College case) and the Circuit Court that’s overturned by the SCOTUS in the vicinity of 80% of the time (86% in 2012).
It’s hardly “authoritarian” to rein in judges who’ve gone, what were Epstein’s phrases?, “over the top” with their “erratic conduct”.
Well, besides judicial supremacy, we have the imperial presidency, administrative agencies functioning as the “fourth branch of government”, and lawmakers who looovve to make laws, even if it means leaving the nitty-gritty of the laws to someone else.
I don’t find the arguments Epstein laid out above plausible either. And maybe there’s nothing consoling about meeting complaints of judicial hypertrophy with, “Hey, at least the other branches are hypertrophied, too, so at least you got that going for ya!” Indeed, it seems like it may be a bit of a racket – “That branch has gotten too powerful, and so our branch should be entitled to slip free of the constraints that branch would impose upon us!” Maybe the branches secretly gather after midnight and giggle over having pulled off the long con.
break is probably not the best word.
What other words could we use. Words do matter.
Defend? Trump is defending the Executive Branch, same way any of the branches should defend their legitimate Constitutional purpose.
The people who want to change the whole identity and politics of the country are those who favor mass immigration.