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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.
Published in Domestic Policy, Immigration, Law
dis·cre·tion
dəˈskreSH(ə)n/
noun
the freedom to decide what should be done in a particular situation.
“it is up to local authorities to use their discretion in setting the charges”
synonyms: choice, option, preference, disposition, volition
cdor,
This started out as a dislike of Trump by Dr. Epstein and many others. It has now bloomed into a full blown obsession to see Trump put in his place. It need not be on the merits. It need not be on anything approaching significance to the National Interest. It in fact may be detrimental in itself to the United States of America.
All that matters is that Trump be put in his place. This doesn’t require additional legal discussion it requires the input of a trained psychiatrist.
Regards.
Jim
Judging by some of Krauthammer’s recent comments, being a trained psychiatrist doesn’t help very much either.
I’ll agree here, also. I respect Prof. Epstein’s opinion and knowledge of the law. I couldn’t make it through every word of the OP, but maybe this is part of our problem. Too much legalese. Does it really have to be that complicated? Us common folk just feel the need to back off for a bit and survey the situation before we return to what appeared to be throwing the doors open to whoever seemed to have a good excuse to come here.
Jim, it most certainly feels that way…mass psychosis apparently can affect even the most brilliant amongst us.
I wonder if Epstein’s distinction between “in his discretion” and “as he wills” is mere theory or an actual legislative norm. Thoughts from Ricochet’s many lawyers and policy wonks would be appreciated.
In fairness, I did find the distinction in the words of Justice Cranch, 1854, referring to a commissioner (but presumably applicable to presidents):
As others have stated, the limits of discretion and priority of principles are for legislatures, not judges, to determine. If further clarity is needed, a judge is authorized only to suspend an order until amended by legislation. He may not fill in the gaps or define terms.
“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.”
Shorter version- Only smart people should be allowed to go to court. Their standing shouldn’t matter if they’re smart.
I sense that Mr Epstein might be referring to us in this comment. I just chuckled when I first read it. The deeper problem is that it really isn’t a matter of whether Richard Epstein sees any harm in delaying implementation of the EO. He doesn’t have the information to make that decision. The President does.
I don’t want to be the person, either, that has to tell you this is exactly the blinkered approach Europe has taken, with disastrous consequences, and the US is, as usual, dutifully following their socialist precepts, wherein persons are only economic entities and shouldn’t worry so much about dismemberment and rape.
You and Yeti have focused on numbers, whereas the harm is not a statistical issue. As I said before, how many jihadists did it take for 9-11? So, I fall out of bed and croak, but it’s OK as a citizen not to worry about my neighbors in locales where Islamic destiny will be physically provided? I should whistle past their graves and learn nothing?
There are apparently two distinct sides to this entire issue, and I’m on the side of safety and the rest of those little things mentioned in the Preamble and the Constitution. The other side thinks what? It appears to treat national security as only something to discuss with great vigor and tendentiousness via WiFi, as a chance to display sparkling erudition and creativity, and to quote illusory statistics.
Trump is our president, vested with the authority and responsibility for our national security, to keep our citizens as safe as possible. Get used to him legally and quickly performing his duties.
Seriously?
And action by the President to curtail these unlawful acts by preventing entry of the perps is lawful and the only available method.
And some of us need to learn the concept of comparative advantage.
You’re right, it’s much better to live in the dreamworld where we outlaw physics.
You must have missed his podcasts. His critique of Obama’s foreign policy is the harshest you’ll find anywhere.
My opinion (which is malleable and still evolving):
The Ninth Circuit possibly reached the right result but based on the wrong reasoning. Its opinion is terrible and its analysis of the Due Process and Equal Protection Clauses is without support. Its consideration of Trump’s campaign promises was borderline outrageous. Did the Court take judicial notice of these facts? Even if it had, courts do not take judicial notice of the truth of the statements. The Opinion’s broad and sweeping rhetoric is equally problematic. The opinion was quite simply terrible.
What should have happened then? The Ninth Circuit has articulated the standard for a preliminary injunction (which is similar to a TRO) as follows:
Immigrant Assistance Project of the L.A. County Fed’n of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002).
Continued…
I separated out these issues. I agree with you about this argument (the second in your original comment). I disagree with you about the grounds for your first argument.
Continued…
The District Court clearly failed to apply this standard. What specific facts showed harm on both sides? What specific evidence indicated who would prevail on the merits, and based on which statutes and legal theories? On such an important question, the District Court needed to do better (acknowledging that it had little time to prepare a proper opinion).
So, the Ninth Circuit should have remanded the case back to the District Court for reconsideration of the TRO. It should have ordered the District Court to reconsider the order, after supplemental briefing in which both parties (especially Trump) presented evidence to support their opinions, within seven days. During that time, the Executive Order would remain stayed. If the District Court did not issue a ruling within seven days, the stay would expire. After the District Court issued a new order, the Ninth Circuit could have provided for expedited briefing back to the Ninth Circuit if the parties desired.
That’s not exactly how it works. The TRO is only supposed to remain in effect until a hearing can be held on a motion for a preliminary injunction, which is supposed to happen within 14 days. That’s when the actual evidence is presented. The TRO is just supposed to keep things as they are until a hearing on the evidence can be held. At the TRO stage, a party can rely on its allegations, without evidentiary support. The Ninth Circuit got almost everything wrong, but that part it got right.
The individuals Epstein was referring to were individual aliens, not Ricochet members or regular Americans:
There may be some Ricochetians who are also individual aliens, of course.
Legal proceedings are costly, and hiring lawyers who themselves have the resources to put your case intelligently is out of reach for many, even if it shouldn’t be. Until that changes, it seems reasonable that people will plan accordingly. Observing that this is how things are now is not advocating that it’s how things should be.
Epstein writes: “… the Ninth Circuit was right to avoid grappling on a thin record with claims that both the Establishment and Free Exercise Clause applied [here].”
Maybe so, but this “grappling” needs to be done at some point. I am more an “original intent” guy like Clarence Thomas. Did the
founder fathers really intend the words “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof” to prohibit a president from exercising his foreign policy and immigration authority to temporarily ban certain immigration? OF COURSE NOT.
Trump’s EO…
Caveat: I am NOT necessarily saying that a state established religion is a good thing (I don’t, I would oppose it and vote for a modern day Blaine amendment) or that Trump’s EO was wise policy (although largely I do think so). I am saying that words have meaning and we cannot just impose our own “good ideas” onto the text of the constitution. That’s what libs do. If the constitution needs to be changed, it can be: By amending it.
Since “prevail on the merits” was highly suspect then the “relative hardship” needed to balance national security risk (hardship to the nation) against the several different inconveniences to individual travelers. The national security risk assessment was beyond the purview of the courts, so the keeping the restraining order in place was a monumental exercise in court hubris. And this is so even if the assessment of risk is wrong.
Then I’m not understanding you. My first argument was that in order to have standing, a party must identify a legal right which has been infringed or which is likely to be infringed. The Ninth Circuit and Prof. Epstein seem to be saying that states have a legal right to bring in whatever aliens will, in the states’ opinion, benefit their universities. I say that there is no such right. Where do you disagree?
The usual formulation of this principle is that in order to have standing a person must (1) show that he has suffered injury-in-fact, and (2) show that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory (or Constitutional) guarantee in question. Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970). The “zone of interests” test is, admittedly broad. But what statutory right or guarantee can the state of Washington possibly identify as even arguably protecting its right to bring in whatever aliens it wants from foreign countries? Certainly the Ninth Circuit didn’t identify any such right.
I agree that a TRO is just a temporary measure pending a preliminary injunction, but you still need evidence, at least that’s my understanding. A party seeking the TRO needs to put up enough evidence to get to the preliminary injunction stage. Put differently, I could not obtain a TRO by filing a complaint and then making stuff up without having evidence to support my allegations. And a court needs to analyze potential success on the merits, which necessarily requires applying the facts to the law to see who may win. The District Court did not properly perform this analysis in my view.
I’m not sure this is correct, though I’m open to reconsidering my view. But I look at it like this: If a party seeks a TRO and can prove serious harm will in fact take place without a TRO, and the government tries to justify its actions by saying its actions are necessary to prevent terrorism, why can’t the party seeking the TRO say there is no evidence to support the government’s position? The court can defer to the executive, but if the executive makes sweeping allegations with no evidence then those claims will not outweigh the specific damage to the individuals absent the TRO.
The fact that the states brought the claim complicates the analysis and weakens the imminent harm. (I’m not addressing the standing issues, just the imminent harm ones). If a potential refugee could show that he would be killed due to the EO, however, and he brought a claim for a TRO, then I think that his likely death would clearly outweigh generalized but unsupported national security implications, and that refugee would likely be entitled to a TRO unless he could show no or almost no chance of succeeding on the merits.
Can we stay on topic. We live in a representative republic where the federal government exercises a national sovereignty function over national defense. Immigration policy and border control is a consideration. This won’t set well with libertarians.
Well, who knows what the District Court did. It’s “opinion” was pure boilerplate, with no reasoning, or speculative factual support for its conclusions. But of all the defects in the Ninth Circuit’s opinion, this seems to me to be the least problematic.
The concept of standing has become so muddled that the various legal tests make almost no sense. Standing is supposed to be: Is this the right plaintiff to bring the lawsuit? Or, to use the constitutional language, is there a case or controversy involving this plaintiff? Not, can or will this plaintiff win? The Supreme Court’s test requiring “injury-in-fact” goes to the merits of the lawsuit and is problematic at best.
On this we agree.
I think that immigration law in general and the INA in particular are intended to support, inter alia, employers. I take it you agree that the states are substantially certain to suffer an injury in fact if the order is implemented.
Those employers do not have a right to have aliens admitted in general, but they do have the right to have those aliens admitted whose admission is required under the INA. If the courts find that the executive is violating the INA in a manner that causes them a harm that the INA was intended to avert, then they should win the case, no?
I’m semi-persuaded by that, although the injury-in-fact requirement is so well-established that I can’t see getting very far by challenging it in Court. But even where there is clear injury, there still has to be some actual right that is at least arguably at issue. For example, the Federal Reserve raises interest rates and, as a direct result, the value of my bonds goes down. No question about the injury there. But that does not give me standing to sue the Federal Reserve. I have no right to any particular interest rate, any more than the state of Washington has a right to admit aliens so they can teach in its universities. If there is even an arguable right, then yes – the question becomes one on the merits. But here, no right is even identified, much less arguable.