A Further Qualified Defense of the Ninth Circuit Attack on Trump’s Executive Immigration Order

 

My recent post on Ricochet took the position that the Ninth Circuit was correct when it set aside Trump’s controversial executive orders on legal permanent aliens and refugees and asked the Trump administration to reexamine the result. Most people in dealing with this order claim that it went too far because it did not accept the President’s position that the order was wholly unreviewable, regardless of its content, which was viewed as self-evidently correct by some and wholly outside the bounds of decency by others. Indeed, many of the comments on Ricochet took the former position by arguing that Presidents should follow the lead of Andrew Jackson and tell the Court to enforce its own order. But it is, as other readers noted, a wild overreaction to a particular dispute to throw out a set of institutional arrangements that have by and large served the United States well for over 200 years.

I put these grander objections aside, therefore, to look at two more fine-grained challenges. I start by noting that in making this decision, the Ninth Circuit was right to avoid grappling on a thin record with claims that both the Establishment and Free Exercise Clause applied to the particular case. That analysis would have been a major transformation of American law that could quite literally upset established practices on allocating scarce immigration slots on the basis of national origin. It also allowed the Court to side step the very tricky question of the extent to which alien claims generated some positive right to become an immigrant. I regard these claims when stated in their general form to be wholly unsupportable. In general, the power of every nation to protect its own borders means that no outsider has a categorical right to enter this country but must allowed to apply before entry.

With all that said, the actual issues presented in this case were of narrower bore, dealing with standing on the one hand, and the relationship of this order to the President’s statutory authority to make unreviewable executive orders on the other. Both these points require further attention. Both of these issues are addressed in a serious and professional manner by David Rivkin and Lee Casey in the Wall Street Journal, and by Michael McConnell on Defining Ideas. I cannot address all of their points here. But I do hope to explain why the contrary view that I expressed survives their criticism.

Rivkin and Casey start off with no hesitations whatsoever: “The Ninth Circuit Ignores Precedent and Threatens National Security: Under its ruling, a state university could go to court on behalf of any alien, anywhere.” I think that their broad and forceful claims are wrong on each of these particulars. The initial argument is that the law of standing does not allow the states of Washington and Minnesota a freewheeling standing to protect the rights of aliens. That would be true if the claim said that these states could raise claims for any aliens for any reason. But the argument in fact was both narrower and more powerful. Great state universities depend for their livelihood on faculty, staff and students that come from overseas. The disruption of this flow, including people on green-cards and other visas is of vital concern to them. And in my view, it is not necessary for them to pluck out some potential applicant to raise their claim. The interest is their interest, and should be valid so long as the universities work in the international markets. There is no reason to play cute tricks with individual aliens.

So the states’ claim is much more specific than the tagline suggests. These groups do not have standing in my view to talk about the refugee problem, although it could well be the case that those organizations that are geared up to handle these individuals may well have standing. As I noted in the earlier article, the refugee piece of this equation is far more difficult than the green-card piece, so one virtue of sending this case back to the President is that he can clarify the order so that the issues on standing and the merits become sharper, at which point, they are more likely to survive the judicial review to which I believe (on which more later) they should be subject.

Rivkin and Casey make the further error in their article by claiming that since the immigration authorities have carte blanche to decide whom to admit, the universities “were essentially gambling” on their ability to continue to use and attract their services. But this is not an argument that goes to the question of standing. It is an argument that goes to the merits of their claim. All standing claims is that their relational interest is strong enough to mount a challenge to the law. It does not go so far as to say that the challenge is valid. The point here is similar to many other cases of standing. There is no question that the person who has been hit by another has standing to sue, even if turns out that the case is dismissed on the merits for want of proof of negligence because claims of strict liability are not allowed within the jurisdiction. Hence the merits have to be faced, for this claim is just a modern version of the ancient law that speaks of interference with prospective advantage. If B attacks A so that he will not do business with C, C has a tort action to remedy that loss, for which of course there is necessarily standing. It is just wrong to assume that standing depends on separation of powers. As I noted earlier, the standing limitation long predates that conception.

Professor McConnell reaches the same conclusion but on a somewhat different ground. His view is that this case is “unprecedented. It is like holding that a grocery store could challenge taxes imposed on its customers because they will have less money to spend at the store.” But we are not dealing with that claim, but with the far more precise claim that the two universities are hurt because they cannot carry out their ordinary business. In McConnell’s case the individual persons in question can mount their own challenge against the tax, and that should suffice to get the issue before the court. But if the tax was on soft drinks purchased from the grocery store by these consumers, the case for allowing the store to bring the action is more compelling, given the likelihood that no one else will bring the suit. McConnell notes correctly that third party physicians are entitled to challenge abortion laws that could interfere with their ability to perform abortions. The claim here is similar. One need only imagine the case where a university is tagged with criminal liability because they have hired someone who is blocked by the order. It is claiming that it is hurt by restrictions on their trading partners.

In any event, it seems clear that someone should be allowed to challenge this order, and I fail to see any harm in allowing it to be brought by sophisticated parties who can make the case intelligently, instead of by individuals who might not have sufficient resources. In fact, the best rule allows either group to challenge so that all perspectives are heard on the merits. After all, both a woman and a physician can challenge an anti-abortion statute.

Turning to the substance, the key issue in this case concerns the statutory authority of the President, which is set out by Congress to cover the following. The question here is exactly what are the limitations found in the grant under the Immigration and Nationality Act, which gives the executive exclusive authority to “the entry of any class of alien” that “would be detrimental to the interests of the United States.” There is a stark difference of view here. The criticism of the Ninth Circuit rests on the deep conviction that the President receives an unlimited discretion under this provision to decide which class of individuals come in and which stay out on as, Professor McConnell says, the president has “plenary authority to decide that aliens from particular nations present security risks.” Rivkin and Casey invoke that same term “plenary,” only to back it up with the further claim that Congress “has vested the president by statute with broad, nonreviewable discretionary authority to ‘suspend the entry of all aliens or any class of aliens … he may deem to be appropriate’ to protect ‘the interest of the United States.’” I do not think that these expansive, indeed extravagant claims, offer a defensible reading of the statutory language. The text does not say that the President may decide at will which persons will enter the country and which will be kept out.

More critically, in this context, it is important to observe the difference between the words “in his discretion” and the words “as he wills.” The former imposes restriction on the President that the latter does not, and in some cases the latter standard is appropriate and in others not. To give an example, I have long defended the view that standard contracts of employment should, in the absence of a statement to the contrary, be reads as contracts at will, by which each side can terminate for good reasons, bad reasons, or indeed no reason at all. That system turns out to be highly efficient in many cases because the party that terminates faces a loss from severing the relationship which acts as an implicit restraint on what would be done. The alternative view that allows either or both sides to terminate only for cause creates endless nightmares that require examining the whole employment record. Hence the strict reading of the term. But now change the situation so that the termination is sought after the worker has done the labor after which the employer refuses to pay. At this point, the strategic firing does not prevent the collection of wages or commissions for work previously done, for now the implicit bonding mechanism on both sides is inoperative. The law will not allow the at will term to deprive the worker of wages or commission for work done. So a good faith or for cause standard is imposed in this narrow context.

In my view, the government official who acts at will does not face any adverse consequences from its decision. Accordingly, his power should not be read at will, except when it explicitly says so. Indeed, in this case a fair argument could be made that Congress could not make a wholesale delegation of its immigration power to the executive, but is under a duty to supply some substantive guidelines. But either way, in this instance, Congress did not attempt that unlimited delegation. Accordingly, at this point, there has to be some check on abuse to see that blocking the entry of this or that class is detrimental to the United States. This standard is often quite low, but it is not nonexistent, and I cannot think of any version of a good faith or rational basis standard of review that lets the President dictate the outcome without bothering to go through any procedures to determine who is in the class and who is not, and without ever once asking whether he classification was over- or underinclusive. Nor can I believe that a simple say-so based on no information, when contradicted by many studies, is sufficient to establish the harm to the United States. I have no question that if President Trump had put several different proposals on the table, had vetted them with leading officials, and had written a brief memo to explain that momentous decision, a court would say that he came within the ambit of the statute. But I am equally confident that if he had used the right procedures and had asked the right questions, he would have never come forward with an Executive Order that was so far off the mark. His admitted shipwreck on both substance and procedure are not curiosities without legal consequences. Rather, they explain all too clearly why it is that the statute was not worded in a way to give the President an unreviewable blank check to do whatever he wants whenever he wants.

The issue here is important because it goes to the rule of law questions that are always invoked on all sides of structural debates. It is surely a violation of the rule of law to usurp powers that do not belong to you. But it is every bit as much a violation of the rule of law to allow an official working on delegated authority to flout the very statute from which he receives his powers. That is exactly what Trump did in this case, which is exactly why his actions were struck down by four judges, two from each party. There is always the danger that the courts will ride excessive herd on every decision that the President makes under the immigration and naturalization laws. But whenever there is a conflict between principles of justice, a court has to decide how to weigh and compare them. In this instance, the President’s Executive Order comes tumbling down even if it, as the statute does, gives him broad authority which is not, however, plenary in the sense that first Professor McConnell and then Messrs. Rivkin and Casey state. I can think of virtually no other action that would fall within this limited exception. Hopefully, the President will not take anymore foolish actions that will further compromise the legitimacy of his office. He has already done far too much harm.

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  1. James Gawron Thatcher
    James Gawron
    @JamesGawron

    Richard,

    The issue here is important because it goes to the rule of law questions that are always invoked on all sides of structural debates. It is surely a violation of the rule of law to usurp powers that do not belong to you. But it is every bit as much a violation of the rule of law to allow an official working on delegated authority to flout the very statute from which he receives his powers. That is exactly what Trump did in this case, which is exactly why his actions were struck down by four judges, two from each party. There is always the danger that the courts will ride excessive herd on every decision that the President makes under the immigration and naturalization laws. But whenever there is a conflict between principles of justice, a court has to decide how to weigh and compare them. In this instance, the President’s Executive Order comes tumbling down even if it, as the statute does, gives him broad authority which is not, however, plenary in the sense that first Professor McConnell and then Messrs. Rivkin and Casey state. I can think of virtually no other action that would fall within this limited exception. Hopefully, the President will not take anymore foolish actions that will further compromise the legitimacy of his office. He has already done far too much harm.

    This is grotesque legal sophistry. We have endured 8 years of a President that refused to enforce the immigration laws period. Well perhaps it’s all about the international needs of Universities?! Perhaps I should have taken into account the needs of those who have high hedges to cut, laundry to wash, and large houses to clean. They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost. How convenient that the ninth circuit court had nothing to say about that.

    You and the ninth circuit court manufacture distinctions out of thin air. I am absolutely sure that no matter how the EO was framed you would have ended your discourse with “Hopefully, the President will not take any more foolish actions that will further compromise the legitimacy of his office.” I am quite sure that to finish with this particular tagline you would have tortured the law till the end of time. Show some mercy and just leave the law alone.

    No thanks. I’m not buying.

    Regards,

    Jim

    • #1
  2. DocJay Member
    DocJay
    @DocJay

    Hopefully, the President will not take anymore foolish actions that will further compromise the legitimacy of his office. He has already done far too much harm.

    He is what he is, for better and worse.  We will get both.

    I read all your articles the last 7 years  and you never said anything approaching this level of disdain for president Obama so I’m inclined to ignore you.

    • #2
  3. RushBabe49 Thatcher
    RushBabe49
    @RushBabe49

    Those who sued had no standing and should have been thrown out of court on their backsides.  Yeah, and the executive order would cause irreparable harm to the State of Washington!!!  No, but the “refugees” who continue to enter our country just might cause irreparable harm to our country.  Many already have.

    • #3
  4. Blue Yeti Admin
    Blue Yeti
    @BlueYeti

    James Gawron (View Comment):
    This is grotesque legal sophistry. We have endured 8 years of a President that refused to enforce the immigration laws period. Well perhaps it’s all about the international needs of Universities?! Perhaps I should have taken into account the needs of those who have high hedges to cut, laundry to wash, and large houses to clean. They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost. How convenient that the ninth circuit court had nothing to say about that.

    For the record, deportations by President through 2012.

    And here’s the continuation. Yes, it went down, but doesn’t look like a “refusal to enforce the immigration laws.”

    • #4
  5. Trinity Waters Member
    Trinity Waters
    @TrinityWaters

    Good grief!

    There being no chance I’d read such a lengthy post about such a simple subject, I just read the intro, skimmed through the body, and read the conclusion.

    I’ll simply note that injecting so much jargon and parsing minutia to death do not change the simple facts that Trump’s order was completely legal, that the judge had no jurisdiction on this order or over a President, and lastly that aliens have no rights under our constitution.  Our constitution was written in plain English and it takes no special education or skill to interpret it.  It is the People’s ironclad rules for government, not a toy to be batted around and scorned by dilettantes.  Furthermore, there exist long-standing statutes and decisions that fully support the administration’s actions.  This has been fully explained over the last week.

    We have many hundreds of federal judges, so which ones are about to decide our next troop or ship deployments?  Ridiculous.

    This whole topic has become a haven for insanity.  Sorry, professor.  We have had a large influx of “refugees”, over 1600, at last count a few days ago, from these seven countries since the idiot judge in Seattle decided he’s the smartest and most informed and decent and honorable and it’s-for-the-children man on earth.  Thank that idiot judge and his enablers when one of these newcomers murders a citizen, blows something up, or decides rape surely must be OK here, too.

    My hope is that Trump is using this circus in the manner of a pawn in chess.  He’s giving the judiciary enough time to completely ruin its already poor reputation.  Many, maybe most, citizens have about had it with perverts in the bathroom with our little girls, fake marriage, Christian persecution, and now judicially-based immigration policy.  They took the pawn, but I’ll bet that Trump hits back twice as hard and will give a few judges a bloody lip.  Three independent branches, remember?

    This whole business is a scandal of giant proportions, and Trump will keep his strength up.  Don’t bet against him, professor.  He will prevail, because we elected him to, he promised he would, and he’s a guy who has integrity and will follow through.  I admire him more every day.

    • #5
  6. Rodin Member
    Rodin
    @Rodin

    Dear Professor Epstein,

    It is true that universities have arranged their affairs as to be heavily reliant on tuition payments from foreign students. It is also true that access to foreign academics are beneficial, if not as essential as the foreign dollars of students. But making oneself dependent on arrangements that can be interrupted by national security concerns is not the same thing as being the victim of a tort when those arrangements are damaged by international imperatives. If it were otherwise our enemies would be well served by contracting with willing citizens simply to ensure that the courts would interfere with foreign policy.

    • #6
  7. Aaron Miller Member
    Aaron Miller
    @AaronMiller

    Richard Epstein: This standard is often quite low, but it is not nonexistent, and I cannot think of any version of a good faith or rational basis standard of review that lets the President dictate the outcome without bothering to go through any procedures to determine who is in the class and who is not, and without ever once asking whether he classification was over- or underinclusive.

    He temporarily suspended immigration from countries designated by the previous president. There was nothing whimsical about Trump’s selections. Why was this action acceptable for President Obama but not for President Trump?

    • #7
  8. Trinity Waters Member
    Trinity Waters
    @TrinityWaters

    Blue Yeti (View Comment):

    James Gawron (View Comment):
    This is grotesque legal sophistry. We have endured 8 years of a President that refused to enforce the immigration laws period. Well perhaps it’s all about the international needs of Universities?! Perhaps I should have taken into account the needs of those who have high hedges to cut, laundry to wash, and large houses to clean. They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost. How convenient that the ninth circuit court had nothing to say about that.

    For the record, deportations by President through 2012.

    And here’s the continuation. Yes, it went down, but doesn’t look like a “refusal to enforce the immigration laws.”

    What on earth do these graphs have to do with dangerous jihadist “refugees”?  This isn’t a numbers game.  How many jihadists did it take on 9-11 to unleash Hell?  This conversation is not about immigration policy, but about national security!

    • #8
  9. Mike H Coolidge
    Mike H
    @MikeH

    James Gawron (View Comment):
    They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost.

    If they are “slave labor” prices (I find it interesting when conservatives adopt the language of class warfare liberals) then surely more people would be able to afford them? How could it be a bad thing for lower middle class Americans to afford home cleaning services? What’s with this mentality that home cleaning must cost an exorbitant amount and only the superrich should be able to afford it?

    • #9
  10. Blue Yeti Admin
    Blue Yeti
    @BlueYeti

    Trinity Waters (View Comment):

    Blue Yeti (View Comment):

    James Gawron (View Comment):
    This is grotesque legal sophistry. We have endured 8 years of a President that refused to enforce the immigration laws period. Well perhaps it’s all about the international needs of Universities?! Perhaps I should have taken into account the needs of those who have high hedges to cut, laundry to wash, and large houses to clean. They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost. How convenient that the ninth circuit court had nothing to say about that.

    For the record, deportations by President through 2012.

    And here’s the continuation. Yes, it went down, but doesn’t look like a “refusal to enforce the immigration laws.”

    What on earth do these graphs have to do with dangerous jihadist “refugees”? This isn’t a numbers game. How many jihadists did it take on 9-11 to unleash Hell? This conversation is not about immigration policy, but about national security!

    Don’t you think your “dangerous Jihadist ‘refugees” are mixed in with these numbers? That said, this was a response to James’ reference of ” the needs of those who have high hedges to cut, laundry to wash, and large houses to clean.”

    • #10
  11. JLocked Member
    JLocked
    @CrazyHorse

    Oh Dr. Epstein, a valiant effort — but never go granular with gun powder. An excellent article for a Constitutional Law class — but for us plebeians a much broader, Matlock-style argument is needed. Do you have suspenders or a southern accent?

    The case of State Economies and the H1B visa needs to be made as to how it impacts the audience here. When compassion and reason fail, hit em with fear.

    I enjoyed the piece and learned a great deal.

    • #11
  12. Mike LaRoche Member
    Mike LaRoche
    @MikeLaRoche

    James Gawron (View Comment):
    Perhaps I should have taken into account the needs of those who have high hedges to cut, laundry to wash, and large houses to clean. They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost. How convenient that the ninth circuit court had nothing to say about that.

     

    That’s it exactly. Those people who are benefiting from lax immigration and border enforcement need to mow their own damn lawns and do their own damn housework. The lives of ordinary Americans are needlessly being put at risk for their laziness.

    • #12
  13. OmegaPaladin Moderator
    OmegaPaladin
    @OmegaPaladin

    Mike H (View Comment):

    James Gawron (View Comment):
    They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost.

    If they are “slave labor” prices (I find it interesting when conservatives adopt the language of class warfare liberals) then surely more people would be able to afford them? How could it be a bad thing for lower middle class Americans to afford home cleaning services? What’s with this mentality that home cleaning must cost an exorbitant amount and only the superrich should be able to afford it?

    The point is that we are undercutting legal labor with illegal labor, and providing jobs for non-Americans over Americans.   It’s refusing to pay the minimum wage, as opposed to trying to change the minimum wage, and is obscene in an era with this much low skill unemployment.

    We don’t live in a libertarian dreamworld, @mikeh   Just because a policy would work better in Libertaria does not mean it would work well in real life.  Then again, you did question whether mental illness existed in a previous thread, so…

    • #13
  14. JLocked Member
    JLocked
    @CrazyHorse

    Trinity Waters (View Comment):

    Blue Yeti (View Comment):

    James Gawron (View Comment):

    What on earth do these graphs have to do with dangerous jihadist “refugees”? This isn’t a numbers game. How many jihadists did it take on 9-11 to unleash Hell? This conversation is not about immigration policy, but about national security!

    Ok, I really don’t want to be this person but I’m a little concerned that you are overly afraid of terrorist death when you are more likely to die by falling out of bed. I’m not trying to be political, I’m not trying to change your mind — but we should rationally look at the data before we spend more tax money:

    Abortion: 129200
    Heart Disease: 72686
    Cancer: 70006
    Tobacco: 41410
    Obesity: 36322
    Medical Errors: 29751
    Stroke: 15748
    Lower Respiratory Disease: 16912
    Accident (unintentional): 16097
    Hospital Associated Infection: 11713
    Alcohol: 11831
    Diabetes: 9050
    Alzheimer’s Disease: 11067
    Influenza/Pneumonia: 6534
    Kidney Failure: 5059
    Blood Infection: 3959
    Suicide: 5061
    Drunk Driving: 4000
    Unintentional Poisoning: 3757
    All Drug Abuse: 2958
    Homicide: 1988
    Prescription Drug Overdose: 1775
    Murder by gun: 1360
    Texting while Driving: 709
    Pedestrian: 592
    Drowning: 463
    Fire Related: 414
    Malnutrition: 328
    Domestic Violence: 173
    Smoking in Bed: 92
    Falling out of Bed: 70
    Killed by Falling Tree: 17
    Struck by Lightning: 10
    Spontaneous Combustion: 0

    2016 had 32 deaths from terrorism. It looms so large in our minds because our grotesque media circus knows its the splashiest and makes their profits on our fear — which in turn fulfills the goal of Terrorists. We should absolutely take the same precautions we have been to keep that number low — but going into a frenzy is exactly what they want.

    • #14
  15. Scott Wilmot Member
    Scott Wilmot
    @ScottWilmot

    Richard Epstein: Great state universities depend for their livelihood on faculty, staff and students that come from overseas.

    Oh boy, a new cry for the left.

    Out with “it’s for the children” and in with “it’s for the great state universities”.

    Seriously?

    These alleged great state universities are dependent for their livelihood on faculty, staff, and students from Syria, Iran, Iraq, Somalia, Libya, Sudan and Yemen?

    That is absurd.

    • #15
  16. Steve C. Member
    Steve C.
    @user_531302

    Richard Epstein: That is exactly what Trump did in this case, which is exactly why his actions were struck down by four judges, two from each party.

    The legal logic is on point, best I can understand. I also think some of this discussion makes the case by the states weaker than they first appear. I’d like to see the Supreme Court balance the interests of a university against the right of the public to be safe.

    I think the point about the party affiliation is weak. Almost detracting from Epstein’s arguments.  It has been well established that Judge Robart, while appointed by GW Bush, was recommended by noted right winger Patty  Murray.

    • #16
  17. Petty Boozswha Member
    Petty Boozswha
    @PettyBoozswha

    It seems to me that Mr. Epstein’s unstated argument is that Trump is so fundamentally unfit to be President that he can not be accorded the presumption of making executive decisions on a rational basis. To be honest, I share this view but I think it would do more damage to our Constitutional framework to make it an explicit finding of an Article III court than to let it go. There is a check on the President’s whim and whimsy, Congress can always revise the statute that the President’s determination and/or classification was based on. These are political questions, not issues of fundamental Constitutional rights because non-citizens do not have Constitutional rights to be adjudicated. [Leave out the narrow carve-out for green card holders, who should have standing to bring their own cases without State Attorney General’s intervention.] Even a judge in Boston and I believe other locations came to the right conclusion as opposed to this ego-tripper in Washington State.

    • #17
  18. Joe P Member
    Joe P
    @JoeP

    JLocked (View Comment):

    2016 had 32 deaths from terrorism. It looms so large in our minds because our grotesque media circus knows its the splashiest and makes their profits on our fear — which in turn fulfills the goal of Terrorists. We should absolutely take the same precautions we have been to keep that number low — but going into a frenzy is exactly what they want.

    49 people were killed by Omar Mateen alone at the Pulse night club, so 2016 definitely had more than 32 deaths from terrorism. Even if that number were correct, that would only count people who died in terrorist acts domestically.

    • #18
  19. JLocked Member
    JLocked
    @CrazyHorse

    Joe P (View Comment):

    JLocked (View Comment):

    2016 had 32 deaths from terrorism. It looms so large in our minds because our grotesque media circus knows its the splashiest and makes their profits on our fear — which in turn fulfills the goal of Terrorists. We should absolutely take the same precautions we have been to keep that number low — but going into a frenzy is exactly what they want.

    49 people were killed by Omar Mateen alone at the Pulse night club, so 2016 definitely had more than 32 deaths from terrorism. Even if that number were correct, that would only count people who died in terrorist acts domestically.

    Indeed, the nightclub horror has been disputed as domestic terrorism which opens up that count to more controversial addition like Dylan Roof and others. Again, my point wasn’t to repute the immigration ban, et al. Was more to get an established sense of toll and adjust fear to reason — as the Media regularly spins out both for the sake of their ratings — which I find despicable.

    • #19
  20. I Walton Member
    I Walton
    @IWalton

    James Gawron

    This is grotesque legal sophistry. Yep

    • #20
  21. Kozak Member
    Kozak
    @Kozak

    Blue Yeti (View Comment):

    James Gawron (View Comment):
    This is grotesque legal sophistry. We have endured 8 years of a President that refused to enforce the immigration laws period. Well perhaps it’s all about the international needs of Universities?! Perhaps I should have taken into account the needs of those who have high hedges to cut, laundry to wash, and large houses to clean. They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost. How convenient that the ninth circuit court had nothing to say about that.

    For the record, deportations by President through 2012.

    And here’s the continuation. Yes, it went down, but doesn’t look like a “refusal to enforce the immigration laws.”

    Nice try, nice try.

    But the portrait of a steadily increasing number of deportations rests on statistics that conceal almost as much as they disclose. A closer examination shows that immigrants living illegally in most of the continental U.S. are less likely to be deported today than before Obama came to office, according to immigration data.

    Expulsions of people who are settled and working in the United States have fallen steadily since his first year in office, and are down more than 40% since 2009.

    On the other side of the ledger, the number of people deported at or near the border has gone up — primarily as a result of changing who gets counted in the U.S. Immigration and Customs Enforcement agency’s deportation statistics.

    Shocking. The Obama administration manipulated the data to make it look like it was enforcing laws it did everything in it’s power to ignore.

    • #21
  22. Larry3435 Member
    Larry3435
    @Larry3435

    JLocked (View Comment):
    Ok, I really don’t want to be this person but I’m a little concerned that you are overly afraid of terrorist death when you are more likely to die by falling out of bed.

    The difference is that your bed has not announced its intention to do everything in its power to kill you.  Your bed is not trying to acquire weapons of mass destruction.  Your bed has not launched military campaigns that have taken over territory larger than the size of Great Britain, and then killed everyone in that territory who disagreed with it.  Perhaps you need another 9/11 before you will take the threat of jihad seriously.  I don’t.

    Furthermore, as a society we do not ignore lethal dangers, even if the statistical number of deaths is small.  Over the last few years, there have been recalls of millions of cars with defective air bags.  Only a few deaths have happened, but pretty much everyone supports this massive and expensive recall effort.  Most people are not going to wait until they die before they deal with a real risk, no matter how that risk compares to the risk of going to bed at night.

    I should also note the absurd inconsistency of lefties who claim (falsely) that the US already has a highly effective vetting process in place, but go into hysterics over the idea that aliens pose any risk that would require effectively vetting them before they enter the country.

    • #22
  23. Larry3435 Member
    Larry3435
    @Larry3435

    I respect Prof. Epstein, but on this issue he has really gone off the rails.  First, the standing argument.  Prof. Epstein argues that if a state thinks that some group of aliens would benefit its interests, the state has a right to force the federal government to allow such aliens into the country.  If you tried, you could not come up with a statement that more flagrantly violates the Constitution, which vests power over alien admissions in Congress.  Exclusively.  The states have no right whatsoever to demand admission of aliens who they think would give them some academic or economic benefit.  And having no such right, they have no standing to assert such a right.  Obviously.  Period.

    Second, Congress’s delegation of power to the President to suspend entry of any class of aliens who the President determines should be excluded.  Prof. Epstein says that the statute doesn’t mean what it so clearly says.  Of course it does.  I dare him to rewrite the statute to be any more clear.  Prof. Epstein also seems to think that there is some sort of Executive equivalent of the Administrative Procedure Act, which requires the President to go through some sort of consultation process before he can take action that he is authorized to take by statute and under the Constitution.  No such process exists.  No such process has ever existed.  No court has ever held that a President is required to do anything of the sort.  Flatly ridiculous.

    • #23
  24. KC Mulville Member
    KC Mulville
    @KCMulville

    Richard Epstein: But whenever there is a conflict between principles of justice, a court has to decide how to weigh and compare them.

    This is the line that bothers me most.

    To decide that [A] is more important than [B] always raises the question, “More important to what?”  If you say that a case is decided by some unstated, implicit principle of justice, we must then ask: who gave you the authority to select higher principles? As a judge, your authority only extends to the meaning of the words in front of you. To weigh and compare “principles of justice,” the court tries to resort to a standard beyond the words of the text, and beyond any review of the consent of the governed. And that’s where errant judges select principles that have no warrant in the words of any law. They evaluate events according to their own sense of justice rather than according to the text.

    Obviously, once you hold that a court has final say whenever there is a “conflict between principles of justice,” you invite agitators to construe every legislative and executive decision as such a conflict. If you lose in the Congress and you lose at the White House, you can still maneuver your way to a policy victory (unfairly) by claiming an injury or injustice, so that a judge (frequently unelected and untouchable) can invalidate the other two branches. Just shop for a sympathetic judge.

    That’s an invitation for disaster.

    • #24
  25. James Of England Moderator
    James Of England
    @JamesOfEngland

    Kozak (View Comment):

    Blue Yeti (View Comment):

    James Gawron (View Comment):
    This is grotesque legal sophistry. We have endured 8 years of a President that refused to enforce the immigration laws period. Well perhaps it’s all about the international needs of Universities?! Perhaps I should have taken into account the needs of those who have high hedges to cut, laundry to wash, and large houses to clean. They surely needed a form of slave labor imported from Central America so they could have these services performed at minimal cost. How convenient that the ninth circuit court had nothing to say about that.

    For the record, deportations by President through 2012.

    And here’s the continuation. Yes, it went down, but doesn’t look like a “refusal to enforce the immigration laws.”

    Nice try, nice try.

    But the portrait of a steadily increasing number of deportations rests on statistics that conceal almost as much as they disclose. A closer examination shows that immigrants living illegally in most of the continental U.S. are less likely to be deported today than before Obama came to office, according to immigration data.

    Expulsions of people who are settled and working in the United States have fallen steadily since his first year in office, and are down more than 40% since 2009.

    You will notice that this does not contradict the information that Yeti provided. 390k in 2009, 240k in 2016. As Yeti’s first chart noted, though, this was considerably more than when Bush took office. Clinton also increased the numbers tremendously, as did Bush, as did Reagan; Nixon, Ford, Carter, Reagan, Bush 41, and Clinton combined had smaller numbers than Obama.

    On the other side of the ledger, the number of people deported at or near the border has gone up — primarily as a result of changing who gets counted in the U.S. Immigration and Customs Enforcement agency’s deportation statistics.

    Shocking. The Obama administration manipulated the data to make it look like it was enforcing laws it did everything in it’s power to ignore.

    The article you linked to notes that the Obama administration went to lengths to maximize its enforcement of the law at the beginning of his administration. Those initial increases in deportations came at a time when net migration from Mexico to the US was negative, thanks to the recession.

    After that, the numbers leveled out and then declined, but this was in part because Obama’s policy, implementing provisions in the Secure Fence Act and with some policy priorities shared with Kris Kobach and other immigration hawks. Specifically, he focused on expanding e-verify, replacing workplace raids with prophylactic measures designed to encourage self-deportation. That gets rid of more illegal immigrants, but results in considerably fewer deportations. He didn’t slow walk this, with numbers increasing throughout his administration. In 2008, there were eighty eight thousand employers enrolled in E-verify. In 2015, there were six hundred and two thousand. For context, Trump is not planning to increase E-verify enrollment as rapidly as Obama did.

    DACA and DAPA were only some of Obama’s strenuous efforts in the opposite direction, but it’s simply not true that the administration did everything in its power to ignore those laws. Obama prioritized other fights and allowed the Border Patrol to increase its numbers and funding dramatically even as just about every other agency had to make do with less.

    • #25
  26. The Reticulator Member
    The Reticulator
    @TheReticulator

    I’ll read this later, but I thought courts were supposed to make rulings, not attacks.

    • #26
  27. James Of England Moderator
    James Of England
    @JamesOfEngland

    Larry3435 (View Comment):
    I respect Prof. Epstein, but on this issue he has really gone off the rails. First, the standing argument. Prof. Epstein argues that if a state thinks that some group of aliens would benefit its interests, the state has a right to force the federal government to allow such aliens into the country. If you tried, you could not come up with a statement that more flagrantly violates the Constitution, which vests power over alien admissions in Congress. Exclusively. The states have no right whatsoever to demand admission of aliens who they think would give them some academic or economic benefit. And having no such right, they have no standing to assert such a right. Obviously. Period.

    Second, Congress’s delegation of power to the President to suspend entry of any class of aliens who the President determines should be excluded. Prof. Epstein says that the statute doesn’t mean what it so clearly says. Of course it does. I dare him to rewrite the statute to be any more clear. Prof. Epstein also seems to think that there is some sort of Executive equivalent of the Administrative Procedure Act, which requires the President to go through some sort of consultation process before he can take action that he is authorized to take by statute and under the Constitution. No such process exists. No such process has ever existed. No court has ever held that a President is required to do anything of the sort. Flatly ridiculous.

    I agree with your second paragraph and thus disagree with Epstein’s conclusion, but what the states are doing in Epstein’s construction (a construction that I believe to be a reasonable reading of their briefs in this regard) is enforcing Congress’ exclusive power over immigration. They’re saying that the President does not get to violate the statute. You and I disagree with Epstein and Washington about the meaning of the statute, but that’s about the merits of the case. Substitute an action that did violate the statute and you’ll see Epstein’s argument becoming clearer.

    If you prefer a different analogy, note that most of the time the plaintiffs alleging problems in Constitutional cases are private citizens who also lack legislative authority; standing to complain about violations does not depend on being the proper body to legislate.

    I’m not sure that Epstein is correct on the first count either, for what it’s worth, but Congress’ exclusive authority is not a basis on which it might be incorrect.

    • #27
  28. cdor Member
    cdor
    @cdor

    PLENARY

    unqualified; absolute

    synonyms: unconditional, unlimited, unrestricted, unqualified, absolute, sweeping, comprehensive;

    plenipotentiary

    Epstein:” The text does not say that the President may decide at will which persons will enter the country and which will be kept out.”

    8U.S. Code 1182

    (f)Suspension of entry or imposition of restrictions by President

    “Whenever 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, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

    I know Mr. Epstein makes diverse and loquacious use of the English language. I admire him for that. However, I sense in this situation based on his very telling last sentence:” Hopefully, the President will not take anymore foolish actions that will further compromise the legitimacy of his office. He has already done far too much harm.” that his emotions have surely overtaken his intellect. Mr Epstein has a palpable dislike for Trump and it colors quite obviously every thought and expression he exudes.

    I have printed and we all have seen it…the words of the law for which President Trump has based his ability to produce the EO. They are clear as the pitch of an opera star.

    • #28
  29. Matt Y. Member
    Matt Y.
    @MattY

    JLocked (View Comment):

    2016 had 32 deaths from terrorism. It looms so large in our minds because our grotesque media circus knows its the splashiest and makes their profits on our fear — which in turn fulfills the goal of Terrorists. We should absolutely take the same precautions we have been to keep that number low — but going into a frenzy is exactly what they want.

    Yes exactly. And what’s more, ISIS and Al-Qaeda have celebrated the “blessed ban” and used it as a recruiting tool. It plays exactly into their hands.

     

    • #29
  30. Larry3435 Member
    Larry3435
    @Larry3435

    James Of England (View Comment):
    You and I disagree with Epstein and Washington about the meaning of the statute, but that’s about the merits of the case. Substitute an action that did violate the statute and you’ll see Epstein’s argument becoming clearer.

    James, I think you are confusing the standing issue and the merits issue.  Yes, of course the question of whether the President has violated a statute passed by Congress goes to the merits of the case.  And the Ninth Circuit claimed that the states were likely to prevail on their argument that the President violated the INA.  I’m saying that is ridiculous.  The statute couldn’t be more clear.  Prof. Epstein claims that there is a difference between “at his discretion” and “at will.”  There isn’t.  I have used each of those phrases in hundreds of legal documents that I have drafted, and it never even entered my mind that they meant different things.  Nor have I ever heard such an argument made before, by anyone.  Ever.  The statute is clear as day, and the likelihood of prevailing on that argument in any legitimate judicial proceeding is zero.

    • #30

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