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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 meant that as a serious question, not rhetorical. Is there an answer?
I do not agree with Epstein’s analysis on this one either, but it doesn’t mean we have to toss everything out all his opinions or assume that everything he says must be wrong.
I lay the blame squarely on Trump’s lawyers. Even the Ninth Circuit would have likely reached the right outcome but for their incompetence.
The Ninth Circuit had to decide whether to exercise its discretion to stay enforcement of a District Court’s TRO pending appeal. That, in turn, required consideration of whether the District Court abused its discretion in entering the TRO. It is very hard to overcome a trial court’s exercise of its discretion on appeal. It’s even harder to get an appellate court to exercise its discretion in a fashion contrary to a trial court. To succeed, you you need rock-solid legal arguments and clear and undisputed facts. Trump’s legal team fell down at both levels, advancing arguments that are clearly wrong — that courts have no authority at all to review the executive order in the first place — and failing to provide facts to back its broad assertions. Thus, the result is not surprising. Trump’s lawyers deserve a ton of blame here.
That being said, the Ninth Circuit has now sua sponte asked the parties to brief the issue of whether the case should be reheard en banc. A different outcome is still possible.
To the best of my knowledge, Epstein does not discuss comments in his posts (which are published on Hoover’s website). He might do so in a follow-up article or podcast.
The obvious one is its application to green-card holders. Of course the Ninth Circuit said it would still have ruled the same way anyway…
There is no answer. Which is why we have to have judicial review. Epstein has pointed out in other podcasts that judicial review is not in the constitution, but it’s hard to image our republic functioning without it.
No, but he did much damage to his credibility on issues important to this audience.
No offense taken or assumed. I do value stability, as all conservatives should. I would not say that I value it more than constitutional government. The two seem inseparable. The system needs both rigidity and flexibility. The issue of the orders constitutionality has not been settled. In fact it was not even the topic of either court ruling. This is just the beginning of the process of adjudicating this EO.
Now the word is that there will be no appeal of the rulings by the Ninth Circuit by the Trump Administration to the SCOTUS. It is certain that the Administration can do as well with security acting through administrative channels as would have been possible with the EO in full effect. So that just means that the Courts must live with the public effects of the rulings, whether that is just political or if any terror events or other crimes result. Someone on the Ninth Circuit Appeals panel is pushing for a vote for a full review. Wonder why?
It seems to me that the state (or other parties) do have the right to take this EO to court. However, where I disagree with those who think the stay on the EO by the court was correctly done is in the legal arguments about the conclusion and degree that the order may be found unconstitutional.
I believe that there is a good case that the EO applies to legal permanent residents and that those LPRs have standing to bring suit as well as the state due to harm that is caused to commerce etc. However, I find the wording of the law so clear about the presidents authority that there is no case where a preliminary injunction should stand. In particular, I think that the president’s and the administration’s (basically the executive branch’s) authority to place travel restrictions to be very broad. No-one can deny that the state department could place a travel ban on people going to another country. So, the EO is not unconstitutional due to the broadness of the powers given by congress. Therefore, I find it more plausible that the court acted under the desire to hinder what the justices thought was bad policy than legal correctness. Lets be clear, it is not the job of the courts to prevent politicians from making bad choices that create bad outcomes for the people of the United States of America (because of course, people in the USA have no rights within the courts).
continued from 128…
Issuing a stay of an executive action when it is being challenged on constitutional grounds is common practice. A stay can be issued if the judge thinks there is a chance that the plaintiff might win their case. To prevent possible further harm while the case winds its way through the legal system. This stay does not reflect the final outcome of the the constitutionality or legality of the government action/law in question (though people can spin it as such and have). What came up before the three judge panel was an appeal on the stay order against the EO. The Government was arguing that the EO had to be reinstated immediately and that it could not wait for the judicial process to make a ruling. But, when asked what the hurry was they provided no particular evidence of an emergency. Just the argument that the action was legal. But the question of the actions legality is what is to be determined. The stay was put in place because a judge deemed that this EO might turnout to be not legal upon closer review and argument.
So frankly all of this seems rather tame to me, and not somehow out of the question of judicial power. Basically I don’t think the courts have gone too far in this case, even if they have been rather assertive. Nor do I say the EO is unconstitutional. We have a process for determining this. Let it play out.
Continued from 131…
So to answer you question @cm I think that the executive and legislative branches have plenty of constitutional power to check and constrain the courts. I do not think that one of those powers is to ignore their rulings. Between the two of them they can change the law to clarify it. They can even amend the constitution if need be (with the involvement of the states). We have a constitution to create stability, if one branch is acting out of line in a particular case threatening the constitutional order only constitutional action can bring them back in line, and maintain any integrity to the system. This may not be immediate in fact it may even take decades (after all think how long terrible court ruling like Plessy v. Fergus were able to stand). But you have to do things the right way, otherwise you are just part of the problem not the solution.
So all these calls for Trump to just ignore the courts and strike out on his own, because he was ruled against in somewhat questionable ways in the first part of a long legal challenge when he has numerous constitutional ways to achieve his goals and withstand legal challenge, to me seems mad. People don’t like losing or feeling like they lost, but he hasn’t lost anything yet and anyway you don’t flip the table over just because you don’t win.
Our constitution is this process.
Not a good answer, as far as I’ve encountered.
If you look at the ratification debates, most people (on both sides of ratification) just assumed it existed. That may be why it wasn’t specifically mentioned.
Amen to that.
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We can not know if the actions we pursue will give us the desired results and consequences. We can not ever really know with 100% certainty and confidence that we are being just and good. We have institutions and a process of making and debating our laws. The process is all there is. It gives us results we like and results we don’t like. It expands our freedom it curtails our freedom, all in a constant churn of changing social and societal norms and mores. Our founders did not give us Laws they gave us a system and the system is what is playing out now. I trust this system not because it always makes good decisions but because we have seen that over time it has the ability to self correct. It isn’t broken just because we happen to be in a place we don’t like at the moment. Let the gears grind away, like a gyroscope it will eventually right itself before it begins to tilt once more. And really that is the best we can hope for so long as men are in charge.
John Yoo makes some good points about this ruling in the Podcast.
I don’t have anything to add to the legal and constitutional issues here. But I did notice something missing from the discussion.
It strikes me that there is a lot of implicit (if not explicit) imputation of bad faith to all concerned that is not deserved. It is my impression that for all its faults, this EO was advanced by Trump in a good faith effort to do something that he honestly thinks will help with our national security. It may be a bad idea. It may have been clumsily implemented. It may be both overinclusive and underinclusive. It may even be beyond the president’s powers (though I don’t think it is). But he was not out to hurt Muslims. That much is clear to me.
At the same time, the court is not out to hurt the presidency, or this president. As some have mentioned, this is not a decision on the merits of the case. It is merely the upholding of a stay of the order until the merits can be adjudicated. In the circumstances, this doesn’t strike me as bad faith, either. Those circumstances are that we are not in any grave danger such that we need to have the order go into effect before the merits are, in fact, adjudicated.
I’m not going to allow myself to get exercised about what essentially is a procedural step in a lengthier process.
I’m late to the party, but the problem with Epstein’s entire article is that you have to accept the first paragraphs as Truth before he lays out why the court was “right.” I respectfully reply that it isn’t Truth.
I checked and there is nothing that says an Executive Order can’t have a “chilling effect”, and so, that doesn’t mean anything to the law. How do you prove in a court of law “a chilling effect”?
What a EO “might” do – as in “they could be frozen out” – is your opinion, and does not matter to the law.
“Stranding” small chilren – not big children apparently – and pregnant women – infertile women don’t matter, apparently – old – but not young – people, injured – but not uninjured – persons… Wait, what? This garbage is nothing but emotional baggage intended to tug at people’s emotions. A favorite trick of the left.
Now let’s talk about people “at risk” because we left Iraq. Really? The withdrawal was completed by December 2011. After 5+ years, I call bullshoot on this statement. This is just a box people over there check in order to get the free ride to the USA at this point. Stop being so gullible, Epstein.
Next, Syria. Just because Obama chose not to blow people up in Syria does not make the “humanitarian crisis” the USA’s fault in ANY way. There are many, many places they can go besides the USA. Why not another Middle East country? They can walk there.
Speaking of “walking there”, how are these folks getting here? I’d bet dollars to donuts it is my tax dollars that are paying for it.
I don’t feel like going on, but I could. Give it up, Epstein. The court was wrong, and you know it.
Benefit of the doubt is fine.
In this case, however, there is abundant evidence of bad faith. Those who oppose the EO could point to the Trump/Giuliani backdoor Muslim ban talk (which imputation of bad faith relies, in my opinion, on a woeful ignorance of the state of Islam as it exists in the world today.) For an imputation of bad faith on the part of the court, one could rely on an analysis of the case such as the one recently posted by John Hinderaker on Powerlineblog, and the conviction that the judges are not stupid:
Legal analysis that Mr. Epstein should have delivered (rather than a contentless policy jeremiad.)
My take on Giuliani’s comments is different from all that I’ve heard on the media. It is this:
Back at the beginning of the campaign, Trump did call for a Muslim ban. Then, a while later, but still long before the election, he backed off and said he was now interested in suspending immigration from dangerous places.
Giuliani actually said something like this: “When he first mentioned it, it was a Muslim ban. Then he asked me to come up with something specific, and we focused on dangerous places, not religion.”
That comment does not indicate that Trump has at any recent time wanted to go back to the Muslim ban idea. Rather, it reflects the change in Trump’s thinking as he expressed it publicly over the many months of the campaign. Giuliani is not saying, so far as I can tell, that Trump asked him in so many words to come up with a Muslim ban.
Giuliani, I believe, is being misinterpreted to his and Trump’s detriment.
Richard has been following the discussion here and will respond in a future post.
The Ninth Circus Court of Schlemiels needs to be slapped down, hard.
Agree but that’s not what we are talking about.
Reasonable interpretation. But to be fair, even with this interpretation, the policy aims to prevent those with certain convictions about Islam from entering our country because they pose a danger. If one is so ignorant of religion that one believes that Christianity=Islam=Judaism=Buddhism=Taoism=Animism, then any EO of this sort is bigoted, and imputation of bad faith is reasonable. (IMO, that equation=vacuity).
The other, perhaps more straightforward and certainly more conventional way that Giuliani/Trump are interpreted as acting in bad faith is that the change is just a way to target Muslims, i.e., they are dressing it up as a country ban to obfuscate this. Again, this can only be seen as bad faith if one believes that targeting Muslims for heightened scrutiny is unreasonable, and obviously so. Thus Giuliani/Trump making excuses and playing politics is bad faith.
The shift from banning Muslims to targeting countries still amounts to targeting Muslims for increased scrutiny. As it should be. But the shift is not pure politics; it is reasonable. We should still vet Muslims from other countries for terrorist links and tendencies, but we cannot rely on the EO specified countries to assist in the vetting because they are either hostile or failed states.
But if one completely rejects any notion of a special problem with Islam, it is hard to escape the conclusion that Giuliani/Trump are acting bad faith.
Again, I will charitably ascribe ignorance to someone holding the Islam-is-no-problem opinion.
Let’s be clear on the legal standard that is supposed to apply in a case like this. When a law is challenged on the Constitutional grounds of due process, the legal standard is the “rational basis” test. That means “the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical Co., 348 U.S. 483 (1955). The government need only prove that the challenged law has “a reasonable relationship to a legitimate state interest.”
“On rational-basis review, [a law has a] strong presumption of validity, and those attacking its rationality have the burden to negate every conceivable basis that might support it. … Legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc.
508 U.S. 307 (1993).
I dare anyone to argue that the Ninth Circuit followed those standards. The Ninth Circuit turned the rational basis test on its head, and demanded that the government prove that the exercise of Presidential power (expressly authorized by the Immigration and Nationality Act) was necessary to prevent terrorism and would actually work to achieve that end. The Ninth Circuit’s decision was not just bad policy. It was flagrantly wrong as a matter of law.
I love this argument (for its absurdity). It’s like saying, “We can’t target Muslims because Islamic terrorism can come from anywhere. Just like Russian aggression needn’t necessarily come from Russia or Russians…”
I wouldn’t mind if these people were committing “involuntary suicide,” except they’re taking us with them.
Where in the Constitution do you find a right for non-American citizens to emigrate to the US. w/o the US having any say in whether they should be allowed in? Or access to our courts if they are neither a citizen or resident, legal or illegal? Keeping criminals and violent persons out of the US is a very valid argument against what you seem to support.
Cool, thanks! Looking forward to it.