Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
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
This is exactly right. The good professor would be correct if there was some ambiguity in the statute but the quoted portion of the statute is pretty clear: any alien for any reason for any length of time. I don’t understand how one goes from the “four corners” of the law to inserting “if there is a non-arbitrary rational reason.” Sorry those words appear nowhere in the statute and to insert them from the bench is a usurpation of power and thus void of any authority. If SCOTUS goes that direction, Trump is within his right to ignore the ruling and act according to his EO
There should not be one. General principle is, if the action was authorized by enabling legislation, court doesn’t examine motive.
So I’m curious if those defending the Presidential power in this case see any limitation to it? How arbitrary can a President be with respect to banning travel? Can he for instance declare comics who make fun of him to be threats and ban any foreign comics from being issued visas? After all that would be a class of immigrant not by nationality but by profession, and it seems to me like people are arguing that courts have no place to determine the merits of his rational under the formulation of the law as written.
I think OP was being sarcastic a bit.
The real problem hear is the most objectively reasonable ban is a generic “Muslim ban”. To avoid 1A issues, any attempt to finesse that into bans on particular countries is a bit arbitrary/capricious.
Look the statute is clear as day. I am sorry that your complete loathing of the President forces you to paint the silliest of straw man arguments, but the statute allows for any alien, for any reason, for any length of time. Congress allowed for the arbitrary nature of the statute not the president.
Okay then this is the true dispute to be had, which is can any statute give such arbitrary power to the president, or is there an implicit standard to any such law that there must be a rational basis for discretionary action. As a general principle of governance giving the executive complete and arbitrary power over anything seems like poor law making and a general threat to our system of checks and balances. Whether one believes the power is being abused in this case or not, if it exists in the manner in which you contend then invariably it will be abused. If not by Trump then by some future president.
Who can settle this question though other than the judicial branch?
As I have state in numerous other places the true test of Trumps intention is whether the review and update of vetting actually happens. If it does than this can be seen as an earnest if poorly executed action. If it simply gets thrown down the memory hole it will just have been a political stunt. Trump is already running late on fulfilling this since this was the objective of the initial EO back in January and by now more than 120 days have passed. I guess he gets a do over? If by October he still has not done this can we conclude anything other than this was a political stunt?
You are correct in this and i thought that a well played political move. While i would have liked to see some other countries on the list, the list itself cannot be attacked as it came from the saintly previous administration.
Its a gotcha, so they are forced to find a runaround… this is the runaround.
I would think when the statute is as clear as this one, any change to the language must come from Congress. Not because I like arbitrary executive rule, but because following the rules of the system are more important than tying the hands of a president I happen to disagree with. The Judicial branch, i.e. SCOTUS, has zero authority to reword a constitutional statute, and this one is just that. This statute has been on the books since the mid-50s if memory serves.
And Trump is not “running late” on this because it was not he who held up the initial implementation of this EO. That belongs to US District judges and the 9th Circus. It is my understanding that when an EO gets stayed, the clock on whatever policy the EO was about also stops. When you call a timeout the clock does not keep running.
Whether this is a political stunt or not, who cares. The point now is whether we are an oligarchy or a Constitutional Republic. If the judiciary is allowed to come along and use political rhetoric from a campaign and dislike for the elected winner to base their legal reasoning, then we no longer have law in this country. We might as well just let next Tuesday go by without any reference at all to what the day is about. You can hate Trump, I don’t care about that. But you shouldn’t cheer for usurpation of power by the judiciary.
See the 9th Circuit opinion.
Congress said: “If you make some findings that lead you to conclude that exclusion of certain classes of aliens is warranted, go for it.”
The 9th Circuit said: “President Trump didn’t make any ‘findings’ that could rationally lead to this exclusion order. The President was just blowing conclusory smoke that had no connection to anything he had ‘found’ to be true.”
I readily concede, @mikerapkoch, that many people do not find that to be a “convincing” argument. Others were convinced, however, including six justices of the Supreme Court, because otherwise the Preliminary Injunction would have been stayed in toto.
What Robert said, but also if the people elect someone so odious that he bans comedians and the people have issue with it, then let them elect a new one.
That is it.
I am more inclined to believe the ruling politically motivated than that they remain unconvinced.
I think you missed my point, @larry3435, but we are total agreement. Precisely because of what you say, there was no rational reason for President Trump to ban all nationals of Yemen, as opposed to banning all nationals of Canada!
Your sarcastic comment is spot on: the problem is not the country known as Canada. But by the same token, neither is the problem the country known as Yemen.
I think the question still remains: From the portion of the statute that was quoted earlier in this thread, where does it say that the president has to make some findings before issuing the policy? Again I say that the statute does not have any built-in ambiguity, so the Court should not look to find ambiguity where none exists and then try to fix that ambiguity by overstepping its authority.
No the problem is people who currently reside in Yemen having possibly become either agents of or patsies for Al Qa’ida in the Arab Peninsula (i.e. Yemen) attempting to enter the United States. Since we have no way of knowing if an individual has become an agent of AQAP–unless they plaster it all over their Facebook page, but even then we might still ignore it–preventing travel from Yemen to the US makes sense and certainly fits the language of this statute upon which the EO is based.
Okay I have reread this post. It does say “whenever the president finds…” so now I would ask who is the fact finder here? Meaning, who is it that gets to determine that “whenever the president finds” his findings need to meet certain criteria? I would argue that it is Congress’ role to make this determination and not the court’s. Because to side with the court is to grant them clairvoyant status.
You have put your finger on the key point, @robertmcreynolds, but your conclusion ignores our entire constitutional history.
Essentially, you have reversed a default rule of interpretation that is “built-in” to both separation of powers and checks and balances concerns, as well as the protection of liberty. Congressional silence must mean “but of course you can’t use this power arbitrarily and without a rational reason.” There is no need for Congress to make those words appear in every statute–they are a shared understanding of all three Branches.
If the Congress wanted to give the President power to act arbitrarily–fat chance–it would have to explicitly say so. That’s what I mean by a reversed default rule. (And it’s highly unlikely that the courts would allow such a power to be exercised in any event–the courts would most likely say that it is impermissible for Congress to give the President a green light to act arbitrarily.)
Well don’t you think, for the sake of liberty, that in cases such as this it should be the legislature and not the judiciary to decide that this statute is being used incorrectly and amend it to reflect the sentiment of Congress? My bottom line is this: Congress opened the door for the president to act arbitrarily because of how they worded the statute and every president prior to Trump has been able to use this statute in much the same manner as Trump. So aside from Trump being viewed as scum by the Left Coast courts, what is the reasoning for the courts cleaning up Congress’ mess? I think Trump would be well within his authority to tell the judiciary that no matter what they rule, he is going to act on this EO until Congress clarifies the criteria for what it means “whenever the president finds.”
Also I think it is dangerous to assume language in a statute that is not there. The rationale is that “the president finds” nothing more according to the statute. If Congress wishes to clarify what exactly the president must find, they certainly can, but not doing so does not mean that the president must be bound by imaginary words that cannot be found on the paper. Implied powers or any akin to this Hamiltonian doctrine is a wicked legal doctrine and empowers areas of the government in ways that we were told during ratification would not happen.
I think this is the biggest danger of how constitutional law is taught. There is no foundation to the Constitution or to the arguments made by the proponents of ratification. There is just precedent built upon precedent. Well if the foundational precedent is wrong, then all following precedents will also be wrong. The argument being made here for the Court is based on faulty precedent. Because Congress didn’t explicitly say the president can act arbitrarily, they must have meant that the president cannot act arbitrarily. This is based on the doctrine of “implied powers” and upon the faulty precedent of judicial review. Where in our Constitution does the judiciary get to determine what Congress meant to put in a statute? This thinking can only come from how law schools teach Con Law.
Correct, @robertmcreynolds. A quickie look at the annotated cases under 8 USC 1182 reveal that the power of the legislative and executive over alien immigration is ” virtually restricted”. The legislative delegated this unrestricted power to the executive in this statute.
Also, when I check the subheading in the annotations about constitutionality: executive power, I find no executive order pursuant to this section has ever been challenged before.
As I said elsewhere, this is like a presidential pardon. Omega pardoned the traitor (un)Manning and that FALN terrorist. Rational? Non-arbitrary? Not in my opinion. But nobody can challenge that executive action. This is like that.
With as plane and simple as the text is. The counter argument boils down to.
Trust us lawyers and judges. Its for your own good.
But to reach this conclusion the Ninth Circuit engaged in highly dubious reasoning. First, the Court determined that the President offered no basis for the Order. The opinion states:
That is a flat out lie. The order sets out the specific threats from the countries subject to the order. For the Ninth Circuit to say something that absurd demonstrates that it is the Court which abused its discretion, or more to the point, substitted its judgment for that of the President. What the Ninth dud was rewrite the statute to read “whenever the President finds, and the courts agree, he may…” Evidently the courts now have coequal authority over national security.
As for the Supreme Court decision, you will search in vain for a legitimate rationale for upholding the Ninth’s ruling on the order temporarily banning refugees with a so-called connection to the US:
Talk about an abuse of discretion. The Court hides behind alleged “equities,” but nothing but a conclusory finding unsupported by facts. In doing so, SCOTUS, too, has granted itself a virtual veto on Presidential actions in the area of national security. In his partial dissent, Justice Thomas reasoned:
If the Supreme Court continues down this road we may, indeed, be facing a Constitutional crisis–in a very dangerous world.
It comes from Marbury v. Madison, which is in turn based on the understanding of the Framers as set out in Federalist No. 78. And, yeah, we teach that in the law schools.
When and how was it determined that the constitution applies to aliens ? Aliens that have never set foot on this continent.
Well, it’s been thirty years since I graduated from law school so maybe I’ve forgotten something. My understanding of Marbury is that the Court granted itself the power to determine whether an act of Congress violates the Constitution. It does not afford the Court power to decide what Congress meant to say. That would empower the Court to compel Congress to rewrite law to meet the Court’s desires. But I’m willing to learn. Can you cite a case where the Court held that Congress must have meant to include “X?”
This thread has probably run its course, but I will end by pointing to dozens upon dozens of cases, at all levels of the state and federal courts, employing a presumption of legislative regularity, and therefore construing statutes to avoid unconstitutionality or absurdity.
For the nonlawyer Richochetti, the courts say something like the following: “Party A is claiming that Statute X means such and such, while Party B claims that it means something else. Well; if Statute X really meant what Party A claims, then Statute X would be unconstitutional (or lead to absurd–not just unfortunate, but absurd–results).”
“Because we presume that the legislature did not intend to pass an unconstitutional or absurd law, that means that we must also presume that Statute X does not mean what Party A says it means. So we will adopt the meaning that Part B is contending for.”
This is often referred to as “narrowing a statute to avoid unconstitutionality.” In my posts on this thread, I have taken the view that Congress did not mean to give the President absolutely unlimited (and especially unriewable) powers to exclude aliens, because it could not have meant to do so. When the courts say the same thing, they are respecting the role of Congress, not usurping it.
Why?
I think our breakdown is in the assumption that preventing aliens from entering our country for any reason and any amount of time is somehow absurd or unconstitutional.
I, and many here, disagree with that assumption.
Could you provide me with the citation of the case from which this quote is taken?
In my nearly 30 years as a lawyer I have never read such a thing. I have read decisions in which the court held that party A’s interpretation is an erroneous reading of the statute. But I’ve never seen a court hold that A is wrong ergo B is right. I’ve read cases where the court has held a given interpretation as invalid, but then goes on to explain what the court has concluded Congress actually meant. If I’d known that all I had to do to win a case involving statutory construction was to show the other guy’s argument is invalid, I wouldn’t have wasted time explaining why my interpretation is correct.
What I have not read in your posts, many other articles on the web, or from the various court decisions, is an honest review of the EO in light of the statutory language. As noted above, the Ninth Circuit’s claim that the Administration did not make findings is flat out dishonest. What the Court should have at least had the intellectual courage to say is “this court doesn’t like the EO so we reject the findings that were offered.” That would at least have the virtue of intellectual honesty. The down side, however, would be that suddenly a Federal Court has asserted authority over matters of national security and that portends dangerous things.
I guess I must have really, really missed your point. And I doubt we are in much agreement at all. There are a lot of very good reasons to treat Yemen differently than Canada. One of them is the same reason that I don’t walk around alone at night in high crime areas. Not because everyone in a bad neighborhood is automatically a criminal. And not because it is impossible for a criminal to operate in a safer neighborhood. No. It is merely because I understand demographics and statistics and risk. Yemen is a failed state. The people there are killing each other on a regular basis, and many of them will happily tell you that they want to kill you too. In addition, there are no decent records of who these people are. There are no meaningful police operations to keep tabs on potential terrorists. There can be no meaningful vetting of these people.
Your argument seems to be that if we don’t have a perfect means of identifying terrorists, we shouldn’t bother to do anything at all. I’ll tell you what… If you can’t tell the difference between Canada and Yemen, I suggest that you go spend a few weeks in each of those countries, and see if that enlightens you.