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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
Is there even an arguable case that the INA requires the admission of anyone affected by the EO? (Leaving aside green card and visa holders; I don’t dispute that cognizable due process rights exist for those individuals, and that at least someone should have standing to enforce those rights.)
To put it another way, James, does a farmer who wants cheap laborers have standing to sue the United States to force it to admit more immigrants? The injury in fact is real – the farmer has to pay higher wages than he would if he had a larger pool of immigrants from which he could hire. But I still don’t think there is standing, and I think that is exactly the argument that the state is making here.
Can any of the lawyers on Ricochet give an example of any law that has been voided due to the rational basis test? I believe there was one in Florida prohibiting men from walking on a boardwalk without wearing a shirt but do not know of any other. Trump feels the national security requires a 30 day pause on immigration from failed states [Iran is hostile, not failed] and the courts are split on whether that is a rational decision. I am second to none in my distaste for Trump, but I don’t see what basis the Washington State judge had for substituting his judgment for the President’s. He sneered [you could hear it in his voice in the audio] at the clueless US Attorney that no terrorists from these countries had killed anyone. Maybe so, but we’ve had two impromptu stabbing rampages in the recent past by disgruntled Somali’s in Minnesota and Ohio. My son attends UNC in Chapel Hill, where a disgruntled Iranian rammed his SUV into a crowd of students at high speed. But no one died so no foul.
No, I don’t think standing exists in your hypothetical either.
I’ve been intentionally ducking analyzing the states’ standing in the Ninth Circuit opinion because I’m not sure where I come out on it. I do think though that the doctrine is muddled and needs clarification and, if possible, simplification.
Did the states point to real, actual immigrants who were admitted to universities or employers and not let in? Or did it just make broad conclusory assertions that such people existed? If those people do exist, do the universities/employers have standing but not the state? Does no one other than the actual immigrant have standing? I don’t know the answers to these questions — just posing them.
So rich, smart people are to always be allowed standing? Midge, I read Prof. Epstein as saying the 9th shouldn’t really look at standing, because somebody needs to challenge this and the smart people at the universities are best suited to do so, and have the resources to do so. He was advocating that standing not be limited those actually aggrieved, but instead be open to those with the intellectual abilities he thinks are needed to bring the case.
As a conservative whose views would fall to the right of Atilla the Hun, I want to thank you for your reasoned review of judicial oversight to over reaching of executive powers. As one firmly committed to individual liberty it is important that such attempts be checked.
That said, as a skeptic of the current federal judiciary, I would not be surprised to see the same judges rule differently on such an order by the previous administration.
By the same logic, the farmer could sue to force repeal of regulations which similarly deny him cheaper labor/expenses. It’s ludicrous.
And still others need to learn the concept of collateral damage.
They are pretty rare, but SCOTUS claimed it was applying the rational basis test in when it invalidated state laws banning SSM in Obergefell.
Their argument is that national discrimination violates the INA. If there is a prospective immigrant who would benefit the state and who meets all the criteria permissible under the INA but who the administration wishes to deny based on criteria that Congress ruled in its absolute authority to be impermissible, the administration is required to admit that immigrant.
If a regulation is implemented that is outside the authority of the issuing body it is common for businesses harmed by that regulation to sue to strike it down. I feel highly confident that you have cheered such suits in the past; Obama had a fair number of his regulations struck down in this manner.
I believe that was not Midge’s reading. It was certainly not my reading.
I think that this is a somewhat weaker claim (the courts are far more respectful of claims that a specific person will benefit an employer through specific skills than of claims that the labor pool in general will be affected). Other than that, I agree that the case of a state and of other employers is similar. Where I would strongly disagree with your hypothetical is that the claim is not that Trump is restricting immigration, which would not be justiciable, but that he is violating the law in doing so. I don’t believe that he is, but that is a question on the merits.
President Obama’s determination did not rise to the level of action taken by the Trump Administration. Trump could have used that as a springboard to present new findings that required further action. That would have survived legal scrutiny. Trump and Bannon wanted something done fast to make a splash. They didn’t do their homework and got punished for it. Serves them right regardless of the policy outcome. Process matters.
240,000 refugees deported or 80,000 deported 6 times?
-The ban singled out unstable countries as a particular danger.
-Washington universities claim they can’t survive without students and teachers from unstable countries.
-Students overstay their Visas and disappear.
-This form of Islam is not only a religion but a system of government whose adherents want to replace our government with theirs. Saying it is a religious ban is too shallow. Many Muslims have no trouble living under our laws, but how do you tell them apart in unstable countries?
-If there is any harm, it won’t be seen until someone who came in during the TRO attacks us. Re Trump, at least he tried, which is more than what other politicians have done.
-This continued fight by the left to open borders and insist the world has a right to be here hardens normally kind-hearted people, turning them against immigration, legal or otherwise.
-You wanted to understand the logic behind the decision so Epstein gave it to you. If you dislike the opinion (I do), ten I would expect you to dislike the rationale behind it. Don’t blame the messenger. We need Congress to get off its duff and take some action. Much blame resides there.
-The Executive Branch is merely following the laws, no matter how poorly written. At least Trump is making an attempt to do so. I do not condemn acting in haste. Presidents sometimes must do that so laws should be clear.
But used Obama Administration precedent and facts that did not lead them to restrict immigration in this way. It would not have been hard to produce new findings that required additional restrictions beyond what the previous administration had put in place. Do your homework. Do things right. Process matters.
Does that correct for the Obama change in definition that made deportations seem much larger?
Later: I see this was already asked, but not clearly answered.
Well, his executive orders specifying further non-enforcement of immigration laws did look at lot like a “refusal to enforce the immigration laws.”
Once again, I’m surprised by Mr. Epstein’s weakness. There is no substantive legal argument in either this or his original OP.
To be honest, I’m rather shocked. I did not believe Mr. Epstein prone to sacrificing professionalism for tendentiousness.
Addendum: Under Mr. Epstein’s theory of standing, it is difficult to imagine what conduct of foreign policy by the President, particularly decisions surrounding the orders of loved ones in the military, for which grave results are numerous, frequent, and likely, that would not be properly reviewable by the courts. This is silliness on wheels. This is not an exceptional point in this piece. Mostly, his assertions lack even this level of support offered.
It depends which charge you’re making. Are you referring to the claim that Removals + Returns, rather than Removals alone is the correct definition of “deportations”? If so, then the concern is irrelevant to this chart.
Alternatively, you could be referring to Obama’s continuation of the Bush era shift towards an end to “catch and release”. Under Bush, one of the central complaints about border enforcement from immigration hawks was that there were no consequences to most illegal immigrants caught at the border, so the Bush administration started to subject more of them to consequences (jail, formal hearings, and such, with a paper trail). Obama increased the scale of this project and those numbers are includeded in this chart.
It’s a selective refusal, so there’s a degree to which you’re both right. The people eligible for the DACA were exceptionally unlikely to be deported anyway, which means that they don’t impact the statistics much, but Obama went from a de facto non-enforcement of the laws condemning them to a de jure non-enforcement.
Thats pretty funny, since under Obama Ice basically practice “catch and release” with illegals. And Ice supplied them with bus tickets into the US.
Even de facto non-enforcement can be problematic. De jure non-enforcement is very much so. And you’re right, it was de jure.
By the way, nobody is accusing G W Bush of vigorous enforcement of immigration laws.
Well, the claim is that the state is suffering harm because it is not getting the immigrants/aliens it wants to teach at its universities. That was where the Ninth Circuit hung its hat on the standing issue, and that is the argument Prof. Epstein advances in the OP. You can’t just say “I have standing because the government is violating the law.” Otherwise, anyone would have standing to challenge any alleged violation of law by the government.
Sorry how else do you get standing? You demonstrate harm from a violation of the law right?
If Trump follows through on his promises, he’s not going to do as much to ramp up border security or immigration enforcement as Dubya did; Trump promises only about 20% more border protection agents, for instance, whereas Bush roughly doubled them. Bush built heavy duty fence along most of the high traffic parts of the border, and less serious fencing along most of the next tier of use; Trump promises to expand on that, but it seems unlikely to have as much impact. Happily, Trump’s rhetoric and preferences should help sell the idea that it makes a difference better than Bush’s did.
I should clarify that I’m not saying that a 20% increase isn’t a big deal or that building more wall won’t save lives and dramatically reduce illegal crossings, just that if you think that a 20% increase is going to make more difference than a 100% increase it may be that you need a mechanism to explain your position.
Similarly, Trump doesn’t promise to expand E-Verify much faster than Obama did. Trump makes his immigration proposals sound extreme (“some of them, I’m sure, are good people”), and some are extreme as they apply to Muslims. As applied to Mexicans, though, the substance of his policies on immigration isn’t generally particularly different to the positions of those who came before him. The biggest point of departure is on sanctuary cities and we’ll see how that works out.
You demonstrate a harm from a violation of law, yes. But there is causation involved. Look, the distinction between standing and “on the merits” can be a little fuzzy sometimes. If you decided to challenge the minimum wage laws because you were harmed by having to pay higher wages than the market would set, I don’t know whether a court would say you didn’t have standing or would just say that you lose on the merits. (All I know for sure is that you would lose.) So, let’s take the example where I acknowledge that a violation of law is possible – green card holders. I think a green card holder who was refused readmission to the country would have standing to bring a due process claim. But that doesn’t mean that every aspect of the law is therefore subject to challenge by whoever else might say they have suffered an injury. You have to have some argument that it is the illegal aspect that caused your injury.
Larry, do you have an example of an Obama administration regulation being struck down in a decision that you approve of? Could you distinguish it from this case without relying on Washington being wrong on the merits?
If you were harmed by an illegal minimum wage hike, you think that the courts would not strike down violating legal instrument? You don’t have to show that it’s the unconstitutionality, or ultra vires, nature of the instrument that harms you to have standing. You just have to show that the legal instrument is unlawful and that it’s harming you.