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SCOTUS Gives POTUS Temporary Bragging Rights
But the real test will come in October, when the Court will learn whether the President took his victory laps, yes, but recognized that he is not going to win on the merits, and therefore backed off and and announced that the “temporary” travel ban was successful, and that no further extension is needed.
Unfortunately, the bet has to be that Trump will overplay his hand, double or triple down, and get smacked badly by the Supreme Court.
To me, the Court’s implicit message is the opposite of that posited by Justice Thomas, who wrote that the lifting of much of the injunction demonstrates that the President is likely to win on the merits. But if that was true, then the entire injunction would have been stayed. Thus, both the actual holding of the case and the implicit message are the same: the individual plaintiffs were able to show both irreparable harm (to themselves) and a likelihood of success. They won in the Supreme Court, and the Administration lost.
If the President doesn’t wise up and moot the case by announcing victory and then backing off on any follow-on Executive Orders, it’s still my view that the Supreme Court will:
a) ignore the Fourth Circuit’s Establishment Clause approach (because that is just too tricky, and also unnecessary);
b) issue a ringing endorsement of the role of the courts in resolving disputes, especially when it is the other two branches that are the disputants; and
c) because of b), adopt the Ninth Circuit’s approach (the surprisingly well behaved lower court here).
The key statutory argument is this. Congress gave the President a tremendous range of discretionary action–let’s call it X. But that means that the Congress also prohibited the President from taking action outside of X–because that would both an abuse of discretion and also an encroachment on powers belonging exclusively to Congress.
The courts are not overstepping their bounds by insisting that the President hew to boundaries set by Congress. It is in fact what Article III courts do. The key example to show abuse of discretion? The EO says that “lots of foreigners have come here to engage in terrorists acts,” but essentially none of those have come from the six named countries. So, Mr. President, under your logic and your facts, why did not the ban extend to Saudi Arabia, Pakistan, Norway or Canada, which had either many more miscreants, or just as few?
The answer: the ban was just for show, and the six countries were picked essentially at random, because they would resonate nicely with the public. That’s an abuse of discretion that harmed US citizens and entities, and it cannot stand while the Article III courts are still open. Anything else, and we become a nation of men (or one man), not laws.
Published in Politics
Not to put too fine a point on it but the travel restrictions called for in the EO were temporary. There seems to be a general consensus that the case will likely be moot by October. Some provisions may already be moot. The second EO’s effective date is 16MAR2017. Some of the provisions were set to expire in 90 days, some in 120 days. October 1 is about 200 days from the date of EO-2. So, no, the real test already happened since most of the provisions that were upheld will expire before the October term.
Edit: Also, doesn’t the Court’s issuance of the stay indicate the underlying theory of EO-2 is sound and that the government is expected to prevail? As the decision states,
formerlawprof
Let’s look this assertion:
Uh huh. We can always count on the Supreme Court to exercise appropriate discretion.
And what, exactly, is the alleged dispute between the executive and the legislative branches in this case? The Congress gave broad authority to the executive so, from the perspective of a dispute between the executive and the legislative I don’t see the issue. Additionally, if there is such a dispute the courts have no power to resolve it since it is a political question and therefore not justiciable. The Court would have to ignore a lot of precedent to weasel its way into any controversy between the other branches and, of course, when SCOTUS does so the results have been, shall we say, less then sparkling in judicial reasoning.
If there is a dispute between the legislative and executive the Court better come up with some slick evidence before it presumes to overpower both the executive branch for issuing the ban and the Congress which granted him the broad powers the President enjoys.
.
Trump has already won. The travel ban was unnecessary, it was a political gesture and successful and now it’s a follow-up victory. What he can do now, and what he could have done at the beginning without any public announcement, is have State’s consular division issue vetting instructions to not issue visas of any kind until it can be established that the applicant has no direct or indirect ties to terrorists and has never demonstrated sympathy for terrorism.
Exactly.
Only lawyers could take the simple declarative sentence in the US code,
“8 U.S. Code § 1182 – Inadmissible aliens f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
And turn it into a Byzantine puzzle. The law clearly, and unambiguously gives the president the right to ban any alien for any reason for any amount of time.
I used to believe that the law is a well-defined set rules upon which the society is based. At least that was the ideal: an ideal that we approached with varying degrees of success. But as a minimum, lip service was paid to the ideal and efforts were made to keep up appearances. Even Stalin had show trials.
Incidents like this one have convinced me that the opposite is true: the law is an ill-defined set of rules that can be put in the service of whichever special interests hold sway. There’s not even a patina of respectability on this latest legal absurdity. Instead, we witnessed the naked application of power in service of #theResistance by the lower courts. I’d like to say I’m shocked but we’re past the point where the rule of law has any meaning. Maybe it never had.
All this law stuff makes me dizzy. The way I see it, the point of the temporary travel ban (for the most dangerous countries) was to give us time to come up with Extreme Vetting. If the administration gets that done by October, then that’s the end of it. Of course, the Democrats can go judge-shopping again to try to stop the Extreme Vetting, but I’m sure it will be done right and pass judicial muster.
I’m thinking they’re probably close to being done with the new Vetting rules, and we’ll hear something soon.
I disagree with that. I think SCOTUS was doing what an appellate court traditionally does: defer to the factfinding tribunal’s determinations unless clearly erroneous or completely unsupported by the record. And here, all the lower courts did was determine whether standards for a PI had been met. But they erred–except, maybe, in the case of American citizens who had a close pre-existing family or business connection with some nonResident alien. So SCOTUS struck the PI except for those individuals. All that means is that even f lower court was wrong, and will ultimately be found wrong, there is at least some cognizable record concerning the issue.
I think SCOTUS will ultimately have to recognize the fact that any harm possibly suffered by such citizens has to yield to safety concerns. F’rinstance, the Bloody Bride if San Bernardino woulda come in under this exception. Terrorists have families too.
Also I don’t agree the ban will be found “just for show”. Even if few successful attacks by nationals of those countries ( and there have been some) it’s not for want of trying. I read Jeff Sessions’ Senate committee uncovered evidence of (from memory)
300 plots by nationals of those countries.
SCOTUS was only deciding if the PI should stand. Trump wanted it struck, and: he won.
I mean, if you consider this a loss–
what WOULD you consider a “win” at this stage of the case?
Yes you’re right. This is a “win” in that way too: the EO podited 90 days; now they’ve got 120 days at least, probably more.
(i note the opinion mentions that the administration amended the EO so that its effective date would be the date it is allowed to take effect, that is, when the injunction was lifted. . SCOTUS notes that but doesn’t say whether it cures the mootness issue. But–why not? It’s certainly something prez could do by EO, to extend the date of order taking effect.)
The issue is that Congress gave broad but not unlimited authority to the President to exclude certain aliens, and the President turned that grant of limited power into a King-like prerogative to exclude anyone he wanted to, for no rational reason. If Trump had said “A lot of foreigners want to come here and do us harm, so I am permanently banning all aliens born in months with fewer than 31 days,” do you imagine that the courts would smile politely and do nothing? Do you imagine that Congress would prefer to have to waste its time to pass a new law clarifying that when it earlier said “whenever the President finds,” we meant “Whenever the President makes a rational and non-ludicrous finding . . .?”
And as to the political question doctrine: no. Interpreting statutes to determine whether the Executive Branch followed them or violated them is bread and butter for Article III courts.
Yes. I think president could temporarily suspend any class of aliens for any reason. That IS what the statute says. And I think the discretion to make the finding of detriment to public safety is the executive’s alone. It’s like with presidential pardons. I hate the fact that Manning and that FALN guy were pardoned, I so t think that was “rational and non-ludicrous”, but nobody can second-guess Omega on that.
Strike the statute, or affirm the action taken pursuant to its authority.
One more time
8 U.S. Code § 1182 – Inadmissible aliens f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Any aliens for any reason for any period of time. Clear as day.
My understanding is that the seven countries had been developed by Obama, albeit for other purposes. Is that incorrect or somehow irrelevant?
I also think this was a huge (yuge!) win for Trump. This EO had been clearly unconstitutional and terrible and Elizabeth Warren parked herself at Logan Airport with a bullhorn. Now, it turns out that there is actual debate as to whether or not this is constitutional. “Actual debate” means that Trump, right or wrong, did not act without reason or in blatant violation of the Constitution.
It also vindicates the claims of forum-shopping for a favourable judge and appellate circuit who would smack this down without considering the law (ie, ironically enough, doing what they accuse Trump of doing!).
It’s penumbrae all the way down….
Chief Justice Roberts might not think those words mean what you think they mean. Just sayin. :)
No, sir. See my post immediately above. In order to protect congressional prerogatives, the language “exclude any class of aliens” must be understood to mean “exclude any class of aliens if there is a non-arbitrary rational reason to do so.” That’s what judicial review is for. The courts cannot even look at whether 60 days or 90 days or 120 days is within or without the zone of the President’s zone of discretion, but they absolutely must perform a minimalist check to determine if the President’s action is purely a matter of unsupported whim.
In another response, @jctpatriot said that “The way I see it, the point of the temporary travel ban (for the most dangerous countries) was to give us time to come up with Extreme Vetting.” But those 6 were not the most dangerous 6! That is what you find if you look into the record, as the 9th Circuit did. Trump said that there were something like 300 instances of aliens entering the U.S. to commit terrorist acts, but he cleverly failed to disclose that essentially none of those 300 came from one of the 6 countries on the list. (A total of four from all six countries combined committed terrorist acts in the United States since 9/11, and of the 12 persons committing fatal attacks after 9/11 zero came from the six countries.)
There is thus no rational connection between a finding of danger and the listing of these six countries–that’s what the courts mean by arbitrary. The President would have done just as well to pick six country names out of a hat, and we do not allow governance by whim or chance.
Besides, every good magician knows that in order to pull a rabbit out of a hat, you have to put the rabbit in the hat before the show begins.
Not a lawyer, just common sense.
Islam, Jihad, Terror, Sharia.
Congress should have written that into the law then. They had every opportunity too. Judges are not psychics, and they have abrogated far too much power to themselves. It’s time for Congress to step up and take it back. Otherwise we live in a Judicial Tyranny.
This is another lovely example of how plain English doesn’t mean what we think it means. Additional phrases can be interpolated as needed to achieve the desired result.
Who are you going to believe, some activist judges or your lying eyes?
“The Federalists have retired into the judiciary as a stronghold….and from that battery all the works of republicanism are to be beaten down and erased.”
I just looked up,Sessions’ committee’s report. Covered 9/11 thru Dec. 2014. Despite the fact that Omega admin was not forthcoming with information, it’s clear that at least 67 nationals from the 6 countries were convicted of plotting terrorism in this country. It would be more if it extended through the present. Additionally, those countries, Syria f’rinstance, do not have any reliable information to share with the US. It is known that fake Syrian passports are common.
There is thus ample evidence that individuals from these 6 countries can be and have been dangerous to US security. President was not obligated to pick the most dangerous countries. He can focus on any threat he chooses.
But is Trump trying to curb a threat or just living out his anti Muslim rhetoric as a political show? In the lower courts the opponents of the EO argued that you could infer Trump’s true rational from his many unguarded and immoderate statements. What is the legal test for determining the earnestness of the President?
It is amazing that these lower court judges were able read the president’s mind and discern motives other than those stated in the order by extrapolating from some political statements. Make no mistake: it was extrapolation since the imputed motives were never explicitly stated.
That is the beauty of the 9th Circuit approach versus the 4th Circuit approach, @valiuth. (Who would have thought that the 9th would be the one to be disciplined and not overreach!)
In order to show that the facially neutral E.O. was not bona fide, but was instead a sham and a pretext for religious discrimination, the 4th Circuit had to practice psychology without a license and infer motivation. This was not an impossible ruling, but it was a serious stretch. (A much easier case of this type was the long ago Yick Wo v. Hopkins, in which San Francisco banned all wooden laundries as a fire hazard. When it turned out that essentially all wooden laundries were owned by Chinese, and that essentially all Chinese who owned laundries owned wooden ones, the Supreme Court struck the ban as a violation of the Equal Protection Clause. There was no need to delve into the motivation–although it was obvious–because the laundry ban so perfectly carried out the discrimination without having to say so on its face.)
With respect to today’s E.O., the 9th Circuit was not required to delve into tricky motivation issues at all. As I indicated several places in this thread, unless you read the statute to say “The President can ban anyone for any reason, including race, religion, or month of birth, so long as he says some magic words,” then the courts are going to have perform a quick “rationality check.” As the 9th Circuit pointed out (in an example that is similar to what follows), because the E.O. is pitched to country of origin only, a Yemeni lad who moved with his family to Norway at age 18 months and speaks only Norwegian at his current age of 23 would be automatically barred.
That’s crazy talk, Jerry.
Look, professor. Your claim that Trump’s order was utterly capricious ignores the fact that the nations affected were identified by President Obama as home to potential terrorist threats. While Obama did not impose a ban, all Trump did was rely on an Obama Administration finding of risk as the marker for such threats and impose a temporary ban until a system was in place for proper vetting. For you to compare the order to a permanent ban of all aliens is fine rhetorical lucre, but slip shod reasoning to say the least. You have yet to even try to explain how the order exceeds the Congress’s grant of power to the President. the relevant statute
Furthermore, your present claim “And as to the political question doctrine: no. Interpreting statutes to determine whether the Executive Branch followed them or violated them is bread and butter for Article III courts” is disingenuous to say the least. You have shifted from your initial argument ” issue a ringing endorsement of the role of the courts in resolving disputes, especially when it is the other two branches that are the disputants.” Your current argument is that the courts may rule on whether the order exceeds the Congressional grant of power. That’s an approach generally used for purposes of statutory construction. I have yet to hear anyone make a convincing argument that the order exceeds to powers afforded by Congress.
But to the issue of whether this is a political question, the courts may not, under long standing precedent, decide whether there is a dispute between the legislative and executive–that is a political question. If the Congress believes the President has exceed his power under the statute it is up to Congress to modify the statute as it feels best. Now you are conflating two different standards of review. The courts generally apply the abuse of discretion standard to rulings from lower courts. Courts also review administrative orders on the issue of whether such regulations exceed the power Congress granted to the executive. However, when it comes to executive orders, and as is discussed in an article from the Heritage Foundation:
In this case, Congress granted the President expansive powers under the statute. The courts cannot rely on the loose doctrine of abuse of discretion to substitute its judgment for that of the Congress and the President. To do so would constitute of virtually unfettered judicial power.
What you are really arguing for is a Court that is essentially a super legislature with unfettered power to rule by decree. Tell me. What limits, if any, ought the courts abide by?
Well, as noted above, the Obama administration identified these nations are threats, so to claim Trump pulled the names out of a hat is to deliberately ignore the facts. But, in this day and age, facts don’t seem to mean much.
Your argument also ignores the purpose of the statute at issue. The Congress gave the President wide power in order that he may stop the risk before it occurs. He need not wait for a group of terrorists to blow up a building before he takes steps he deems appropriate–as per the express language of the statute. Otherwise, the statute becomes meaningless. I suspect that the real target of these various challenges is the statute itself. There are political forces that want no restrictions of refugees or immigrants and the statute stands in the way of that goal.
No. The Court’s job in this is to review the order on the basis of whether it exceeds the power granted by Congress. A rational basis test would be applied in interpreting the statute itself under some theory that the act violates the constitution. In the Yick Wo v. Hopkins. Court applied a form of the rational basis test when it held that the San Francisco rule violated due process.
There is no such test, although one of the decision, I can’t remember which one and I’m too lazy to look now, did rely in part on Trump’s campaign rhetoric. If there were such a test we be impeaching Presidents, Congressmen, and Federal Judges every day. Come to think of it, that’s not a half bad idea.
Because there’s no chance he would be an Islamic terrorist right? That would never happen….
Thank you for illustrating why decisions like this must not be left to lawyers and judges.
Oh, clearly. For example, Amor Fathoui, who carried out the terrorist attack at the Flint Michigan airport this week was Canadian. We know this because every news outlet identified him as Canadian, and not as Muslim. As he attempted to murder a security officer, Mr. Fathoui shouted “Allah Ahkbar!” which, I guess, is a lyric from the Canadian national anthem? Clearly, Canadians are just as much of a risk as jihadists from terrorist states. After he was apprehended, Mr. Fathoui explained that his attack was in retaliation for “killings in Syria, Iraq, and Afghanistan,” but obviously those countries have nothing to do with it. The problem is Canada. Maybe we can solve the terrorism problem by putting a ban on maple syrup?