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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