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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
One more point; hopefully my last. Here’s another approach to the standing issue. It is frequently said that the case or controversy requirement assures that issues will be vigorously litigated by persons who have a sufficient interest in the outcome so that they have an incentive to present their side of the case effectively. Now we know that the state of Washington is governed by leftists who have a political incentive to litigate vigorously. They hate Trump. But what if the suit had been brought by and in a red state? Say, Texas. And what if the AG of Texas had presented the case narrowly and half-heartedly. Do we really believe that Texas’s interest in obtaining the services of some Yemeni sociology professor (assuming that such a person even exists) is strong enough to guarantee that Texas will vigorously litigate the case?
Obviously not. If political passion was sufficient to confer standing, then the proponents of California’s Prop 8 in Hollingsworth certainly should have had standing. No doubt about the political passion there. But that’s not the test. The interest at stake has to be material. It has to be so material that there is no doubt about the incentive of the plaintiff to litigate vigorously.
How much luck would Pete Wilson have running for governor today?
Oh yeah, another “benefit” of open borders.
I once watched Charlie Cooke and James discus the finer points of political philosophy and I felt like a gibbering idiot. I feel much the same here.
If anything, the takeaway from this conversation is that gibbering is just fine, and can even sound intelligent if there is a bit of erudition (or frequent trips to google) behind it. Anyway, I always welcome your comments. In most cases, I find you to be one of the clearest thinkers on Ricochet.
Yes, clearly the voters who passed prop 8 had no material interest in seeing the law they approved enacted. ?
Well, so said the Supreme Court. Can’t say that I agree. But if it wasn’t good enough then, it shouldn’t be good enough now.
What made Hollingsworth really outrageous (no matter how you feel about SSM) is what it did to California’s initiative process. Voter approved initiatives are supposed to be a way for voters to express their will when their elected representatives refuse to act. But if the voters pass an initiative, and then those same elected officials refuse to enforce it and refuse to defend it in court, and the courts say that no one else has standing to enforce the law, then the initiative process is just meaningless as a way to check elected officials who are unresponsive to the popular will. California had might as well just declare the Democratic Party to be it’s Politburo and dispense with any pretense of democracy.
Well put
What sorts of actions would not play into their hands?
It looks as if you’re contesting the claim that universities have a clear interest in hiring the academics of their choice.
Texas also has that interest, so it has the means to litigate, but you correctly point out that it does not wish to do so. Discretion is a separate issue to either standing or to merits and I don’t really understand why you raise it. Are you arguing that the clause should not be in the Constitution or that it should be amended?
Whenever there is a dispute over legal standing and harm has befallen a plaintiff, judges not only can grant standing, but are bound to do so in the ordinary course of events.
I don’t think that it is circular. If you prefer Scalia’s description of the issue, he gives it here, in Lujan:
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements: first, the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, see id. at 756; Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); [n1] and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,'” Whitmore, supra, 495 U.S. at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.
Simon v. Eastern Kentucky Welfare [p561] Rights Org., 426 U.S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id. at 38, 43.
I’m not at all sure that I follow how this is in any way circular.
The harm hasn’t arisen yet, but it is substantially certain that it will arise.
Facial unconstitutionality just means that it doesn’t require the implementation to go a particular way, not that you must engage in only superficial analysis of the law. If the EO is unconstitutional it’s almost certainly so facially rather than as applied. Read the briefs and you’ll find essentially no conjecture about how implementation might proceed. The opinion doesn’t find the EO unconstitutional, though, it reserves judgment on that and finds that the EO may have violated the statute.
I brought up Lujan because it appears that you’ve moved from alleging that there’s no harm to alleging that the legal violation is not a facial violation to claiming that it is not redressable. Since the harm could be redressed by striking down the EO, I do not agree. It’s certainly true that the courts are unlikely to rule that no restriction on the admissions of aliens is permissible, but that is not what the plaintiffs are asking for; they just want this EO struck down. I think that it’s likely that Trump’s replacement EO will be better and will survive scrutiny, but that’s not because the courts could not strike it down if it is unlawful.
I am arguing that it should be enforced. As written. I am arguing that an alternative approach that allows judges to ignore the Constitution whenever they feel like it is bad law and bad policy. Your quotation of Justice Scalia’s test for standing is a good statement of the law, and I have no doubt that if Justice Scalia were here to apply it he would say that there is no standing in this case.
Look, I think that your most recent comments just talk past the points I have made, so I think that we are at the point of agreeing to disagree. Neither one of us is getting paid what we usually get paid for our legal analysis, and probably neither one of us can afford to pay what we usually get paid for our legal analysis. But it seems that the conflicting points of view that we have presented have been educational for those who are following this thread, so perhaps our time has been well spent.
Are you confident that Scalia would find that 1. there was no harm, and 2. that the harm was not redressable, and 3. that there was no claim of a facial violation, and 4. that there was some issue with Washington’s partisan stance, or do you feel confident of only one of those things?
Those are not statements consistent with the positions I have taken but, in any event, I am only confident that Scalia would have held there was no standing. There are so many problems with the standing claim that I cannot predict which or how many of them Scalia would have addressed if he had written the opinion. Of course, Scalia would have rejected the state’s position on the merits as well. At least on that he, and you, and I would be in agreement.
In Scalia’s description for the Constitutional minimum requirements for standing which you quoted from Lujan, Scalia mentions all of the elements that I have identified in this thread. 1) Injury in fact to a legally protected interest, not just any adverse consequence to an interest which has no legal protection such as some non-existent right to hire aliens. 2) A concrete and particularized harm, rather than something vague like an impact on market conditions. 3) A harm which is not conjectural or hypothetical (another way of saying that advisory opinions are not allowed). 4) A causal connection between the injury and the challenged illegality. Scalia also mentions the issue of whether the injury would be redressed by the relief sought, but I have not raised that.
Your test, so far as I can understand it, eliminates most of these elements. You say that there is standing whenever there is actual or potential harm of any kind, and the challenged governmental action is arguably illegal.
Scalia’s test accurately describes the law. In my opinion, your test does not.
This has been great. Once you have mastered the talking points, try this new challenge… try diagramming Epstein’s sentences. Drink.
Larry3435,
It doesn’t happen that often but sometimes an Amateur chess player beats a Grand Master. I think you have Dr. Epstein in checkmate. Dr. Epstein should resign the argument and admit defeat rather than Trump resigning the Presidency.
Regards,
Jim
So, just to be clear, you’re not confident in any particular theory, but there are enough potentially fatal issues that you think he’d be sure to agree with you on at least one of them?
That sounds like some kind of “gotcha question.” I’m pretty sure I have already been clear. But, since you ask: Yes, I believe that Justice Scalia’s approach to the law was sufficiently clear and consistent that I can predict with some confidence how he would have come out on a particular issue (unlike, say, Kennedy or O’Connor) but I think it would be overreaching to predict his exact reasoning in getting to that outcome. Now, why does that matter?
Sorry for the very late reply. I think that the claim that I understand you to be making of “If I roll 6 dice, it’s highly likely that at least one of them will come up evens” is pretty fundamentally different, and in this case seems significantly more respectable, than claiming that each of the issues is locktight. It wasn’t a gotcha, I was interested in which of those was your views.