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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.