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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
I approve of SCOTUS holding (unanimously) the the President did not have the power to unilaterally declare that the Senate was not in session for purposes of making a recess appointment. I have not analyzed who would have standing. Congress, certainly. Citizens affected by the actions of the unlawfully appointed officials, probably. The state of Washington? Hell, no.
James, let’s take this example. Two aliens show up at customs. One has a green card; the other has no green card, no visa, and no prior contact with the US. The harm to each is the same – they are turned away by customs. But I would say that only the one with the green card has standing to assert a challenge to the exclusion. Even if the exclusion of the green card holder is illegal, the other alien has no standing to assert a claim based on that illegality.
I disagree. Imagine the following minimum wage law:
Section 2 is illegal. A Muslim employee would have standing to challenge it. But Section 1 is legal. An employer would no have standing to challenge the $15/hour minimum wage of Section 1 just because Section 2 contains an illegal provision.
I read Midge as saying that Prof. Epstein’s cavalier regard to standing was understandable given the difficulty of those who might have standing (affected green card holders and other resident aliens) would have in challenging the EO. Difficulty in both intellectual and financial resources. I wasn’t saying she supports this POV, just that I think it is a weak argument.
It appears that district court has ruled that the states have standing. And I presume this is accepted by the circuit court since they didn’t reject the case based on lack of standing. Question? Is it possible the Supreme Court could rule the states lack standing? Or would they be inclined to accept the findings of the inferior courts?
This is by and large correct. US law says that the US government is, for many purposes, not obliged to respect the rights of foreigners. Green card holders are not foreigners for most purposes and as such fare better with the courts. You know who else is not a foreigner? The state of Washington. Not only is Washington American, for the last century and a half it has been clear that Washington cannot stop being American. As such, the Federal government is required to respect Washington’s rights and provide it with access to the courts when those rights are violated.
If Sec. 2 made the minimum wage for Muslims $20/ hour, do you agree that that would be something that an employer of Muslims would be able to challenge? It’s true that you need a violation and harm, which is not present in your example, but Washington is alleging harm and a violation. Is it your position that denying Washington access to specific academics and such does not rise to the level of harm being caused?
It is possible that they could rule that the states lack standing and no deference is owed to inferior courts on the question. You will note, however, that the administration does not appear to have a lot of confidence in this outcome.
I guess Larry and I disagree on whether the SCOTUS would be likely to come down on that side. We will see how the administration feels when they decide whether or not to issue a new version of the order.
Having the interests of justice as part of the criteria used is a very different issue to “rich, smart people are always to be allowed standing”. I didn’t address Midge’s own beliefs, merely my understanding of Prof. Epstein’s beliefs and my understanding of Midge’s understanding of those beliefs.
You think Congress would certainly have had standing? How familiar are you with Raines v. Byrd?
In the case you’re talking about, NLRB v. Noel Channing, Noel Channing had standing. Why did Noel Channing have standing? Because as an employer, there was harm suffered as a result of the violation of the law. States could also have sued if there had been a decision adverse to them handed down by Obama’s appointees. Why on earth would you think that they would not be able to do so? Do you believe that any of the many successful state lawsuits against the Obama administration were legitimate?
I don’t think I have ever discussed standing this much, even in law school. I suppose we are not going to reach any kind of consensus. I’ll just say that I find the argument for standing here to be as weak and as sloppy as the arguments on the merits. If we are being honest, the only “case or controversy” is that a couple of liberal states don’t like the fact that Trump won the election and are trying to throw sand in the gears. I think that the idea that the Governor of Washington is losing sleep over some hypothetical Yemeni faculty member is such bunk that I don’t know how the state’s lawyers can keep a straight face.
In 2013, in Hollingsworth v. Perry, SCOTUS held that the sponsors of California’s Prop 8 did not have standing to defend that law, even though California officials refused to do so, and even though California law expressly granted them standing. I dare anyone to square that decision with the decision here. It seems that standing is the new darling of outcome-driven jurisprudence. For my part, I don’t like that development very much.
There’s a difference between a business suing to refuse an unConstitutional requirement and one suing to escape an unjust but lawful requirement.
If the argument in this case is that the President exceeded his Constitutional authority (which he didn’t, best I can tell), then any American may sue on such account. If the argument is rather that a lawful order hurts an organization’s financial bottom line, then that company’s objection is with electoral results rather than legal authority. There is properly no legal redress for fairly lost elections.
Most laws have economic implications. If it was possible to sue any time a citizen’s budget was impacted, our judicial system would have time for nothing else.
Yes, if there had been a decision adverse to them handed down by Obama’s illegal appointees. If. But they didn’t thereby have carte blanche to challenge any aspect of federal labor law that they didn’t like.
Pftht. I said I was done with this, and I should stick to that decision.
Right, but assuming the existence of a dispute about which category the case belongs to that’s a difference on the merits, not a difference on standing.
Only Americans harmed by the violation. It’s true that states are not the only entities covered; hence the 50 lawsuits (and counting).
Washington argues that Trump has exceeded his Constitutional authority, which Prof. Epstein and I believe to be a losing argument, and that he has exceeded his statutory authority, which Prof. Epstein believes to be a winning argument and about which I am agnostic.
This is correct. That is not the argument put forward in Washington v. Trump.
This is also correct. Most legal instruments that impact a citizen’s budget are clearly lawful and are thus not subject to suit. Washington’s argument is that the executive order violates both the Constitution and Federal law. Most of the other many lawsuits claim the same. Once either the order is superseded by a replacement order or a SCOTUS opinion is delivered, we’ll stop having many suits being launched because the legal controversy will be diminished.
Very. Yet another example of inconsistent and outcome-driven standing analysis.
It’s not very difficult to square these, although it does help to have read some of the cases. In Hollingsworth, as in Raines, it was held that people who sue on the basis that they have acted in a legislative capacity lack standing if they are not personally hurt in a concrete and particularized way. For a state to act as a plaintiff, the designated agent of the people must act on their behalf. Congress is not the designated agent of the Federal government for these purposes, and the initiative sponsors were found not to be the designated agent of California. Instead, the designated agent is almost always in the executive branch (indeed, one could almost say that this is part of the definition of the executive branch). There was some disagreement about the structure of the California state constitution in Hollingsworth, but the general principle is pretty clear.
In this case, it appears that the entity that has suffered harm (Washington) has acted through the proper procedures in the Washington state constitution to bring suit.
So far as I know, there is no contrary precedent in SCOTUS case law and Raines appears to be generally accepted law by all the current justices.
It’s not the money you spend or necessarily the posturing (although obviously actual enforcement takes resources). But you do need to be serious, and communicate that you are serious, about enforcing the immigration laws. We shall see if Trump really is.
But Bush and Obama were not. Those graphs helpfully supplied by Yeti tell a different story than he thinks. Deportations per year went steadily up; if the administrations were serious then they would not have. High levels of deportation is a symptom that migrants have no fear of entry so they will do it again and again, because employers have no fear of employing them. High deportations are valuable as a propaganda tool, and to keep the border agents ameliorated. Win-win for politicians and their clients.
What would you accept as evidence that it had become harder to cross the border and harder to remain? What will you accept as evidence that Trump has made it harder to cross and harder to remain? Opinion polls asking Mexicans and/ or Chicanos and/ or illegal immigrants? Government experts? Think tank experts? Academic experts? If deportation numbers go down, will that encourage you? If the numbers go up, will that encourage you?
If employers have no fear of employing illegal labor, why are they signing up for E-Verify?
Does wall building help discourage immigration?
At this point, it will take time and an analysis of events as they unfold. It is not easy to disentangle fact from propaganda.
However, you seem to be of the opinion that the past two administrations have been quite serious about enforcement, and that the likes of me are just obstinately delusional.
The opposite is the case. Some of us have been paying attention for the last 20 years (it started in earnest in the 90s), and the voters seem to have clued in, too. Some of us run businesses and deal with the immigration system; some of us run businesses that rely on employing “immigrants” to keep our margins as high as possible. We know the system, and particularly how it’s gamed. Some of us aren’t stupid.
Some of us also know that a good way to get along is to be fully on-board with E-Verify. It protects the politicians, too. E-Verify need not be necessarily effective. It comes down to intent and seriousness.
As a business owner, do you believe that E-Verify is not effective at reducing the number of illegal immigrants employed by E-Verify using entities? My understanding was that one of the benefits of E-Verify was precisely that the impersonal nature of the system rendered intent and seriousness less important.
Do you believe the system is easier to game than it was twenty years ago? What sort of evidence do you have for this claim? Do you believe that the border is more porous than it was before the wall was built? Has moving from 4K border guards to 24k reduced the level of security? Have the underground sensors, the AWACS planes, the UAVs, the sonar, the remote cameras, and such had a negligible effect?
During my time with border guards, illegal immigrants, business owners and other people I rode along with, interviewed, and such there appeared to be a universal agreement that the first of those decades saw border crossing become significantly more difficult in the region I was studying (the San Diego/ Tijuana region), particularly if one goes back another couple of years further to the first border wall. I haven’t spent a lot of time in the last decade in California, but the statistics appear to have gone with what one would have expected after having more wall built, sensors and equipment improved, and more people to man it. I’ve also experienced a constant flow of statements from people both in the border region and far from it, but not personally involved in border crossing, that things have never been worse in terms of migrant flows. 1994 appears to have been the peak for that sentiment, though. I’d be surprised if a Prop 187 passed today.
And what, a couple of years ago, when Arizona tried to enforce it’s borders, the courts insisted that immigration is solely the prevue of the federal government.
A federal judge has struck down a 2005 Arizona law that made smuggling immigrants a state crime, saying it conflicted with federal laws governing immigration.
U.S. District Court Judge Susan Bolton said in her Friday ruling that the state law was “preempted” by the U.S. government’s authority to enforce immigration laws, dealing another legal blow to Arizona’s controversial efforts to give local and state law enforcement more muscle to combat illegal immigration.
E-Verify is indeed impersonal. That is its chief advantage as a propaganda tool. It is complicated to show how it lacks effectiveness (without pretty thorough cooperation from the bureaucracy; good luck with that), and like any government database, incomplete and incorrect information is taken for granted. And that database will remain low quality unless there is a real determination to make it effective. So far, it looks like its pretty easy to get yourself through.
And that appears to be the real problem. There has been no serious internal enforcement. Trying to police the border is a losing proposition so long as it’s worth just coming back in each time.
And prop 187 would lose today, not because there is less illegal traffic or fewer illegals, but because California has been transformed into pseudo-Indonesia (yep, there are rich Indonesians, and they have cheap labor, too.)
One of the nice things about e-verify is that it produces a lot of statistics. Erroneous decisions (both false negatives and false positives) appear to have been declining, which suggests to me that the quality of the database has been improving. Right now, the number of cases confirmed after an initial mismatch is about 0.16%, which seems like a pretty low figure to me (it’s certainly substantially lower than it was when the system was first implemented). Identity theft is still a problem, but even there the Feds are getting better at tracking people down. Identity theft is not a workable solution for most jobs that you intend to keep for any amount of time and increased difficulty in finding work is one of the most popular reasons given for depature by those who have self deported.
If California is no longer voting on the basis of immigration concern, where has stepped up to take its place? An alternative height of voter support might be 2007, when the Secure Fence Act had overwhelming support, persuading many Democrats to vote for it.
The states don’t have the ability to make immigration law, which is exclusively a Federal competency. That doesn’t mean that they can’t litigate over it.
I don’t have the ability to make criminal law, but if a law is passed allowing the police to search my home without a warrant and they do so, I will have standing to sue to have the law struck down.
James, this sentence seems to be the crux of your argument on standing. If a law is “clearly” lawful, then there is no standing to challenge it. But it the law is not “clearly” lawful, then all of the questions about it become questions “on the merits” and there is no issue of standing. This approach effectively gives courts the authority to grant standing to anyone they want, whenever they want, just by claiming that there is a doubt about whether the lawfulness is “clear.”
This reasoning is circular and, I’m sorry, but I don’t buy it. Let’s look at how Prof. Epstein frames the argument:
This argument is not based on any showing of particularized and individual harm. It just claims that a regulation’s impact on the marketplace creates adverse economic conditions. This is no different than the examples I gave under the minimum wage laws.
A word more about why Raines v. Byrd would not (in my opinion) deprive the Senate of standing to challenge Obama’s unilateral decision to declare the Senate adjourned. Raines was a challenge by a group of legislators who had lost a vote on a statue authorizing a “line item veto.” I think the Supreme Court’s reasoning was muddled, but it really boiled down to: “If you want to repeal this statute, go get enough of your colleagues to vote your way. We are not in the business of reversing Congressional votes because the losers don’t like the outcome.”
Obama’s action was entirely different. He purported to decide something that was entirely and exclusively within the power of the Senate to decide. I think it is clear that this was an usurpation of one branch’s Constitutional authority by a different branch. To my mind it is no different than if Congress had passed a bill and Obama, by proclamation, announced that the bill had not passed. If SCOTUS decides that the Senate has no standing to challenge such an action then hell, Obama had might as well have declared that the Senate was in recess permanently, and SOL for separation of powers.
And a word more about the “case or controversy” provision of the Constitution. That provision is a vital part of separation of powers and of the structure of our government. It is meant to prevent courts from issuing “advisory opinions,” which is to say that courts are to decide particular cases with actual facts, rather than deciding broad principles based on hypothesis and conjecture about the effect of a given law. Put differently, the case or controversy requirement is a Constitutional prohibition against courts legislating from the bench.
The Ninth Circuit’s opinion did not resolve a case or controversy. Even if the state had shown that some potential faculty member with a green card had been unlawfully excluded, that would not in any way justify a decision that every alien on any hypothetical set of facts is entitled to enter the country. Courts have long drawn a distinction between laws that are unconstitutional of their face and laws that are unconstitutional as applied. At most, the Ninth Circuit might have been making an argument that the EO was unconstitutional as applied to some Washington State University faculty member with a green card. But using that as a springboard to issue a sweeping injunction against restricting admission of any alien, anywhere, is flatly ridiculous.
There is not a jot or a jiggle (h/t Justice Scalia) of a suggestion in the Ninth Circuit’s opinion that there is anything in the EO that is unconstitutional on its face.
I guess I can’t keep my hands off of this, although I really, really intended to. Another point about Raines and advisory opinions. The “line item veto” bill in Raines had included a provision giving standing to individual members of Congression to challenge the Constitutionality of the bill.
I think it is self-evident that this was meant to be a back door approach to getting the Court to issue an advisory opinion. SCOTUS didn’t take the bait. Good for SCOTUS, although I wish it had been more clear in its opinion that it saw through the sham and wasn’t going to be fooled.
Larry and James, thanks for the education.
It’s like law school, but without the pressure or the tuition bills. Kinda fun, isn’t it?