More reflections on the 9th Circuit’s decision on Trump’s EO
Yesterday’s news about the 9th Circuit’s decision in the Trump EO case is the sort of thing that takes a moment to sink in. But it seems stunning that even the notoriously liberal 9th Circuit could have upheld certain aspects of it, such as the finding of standing of these states to sue and/or of a possible right of citizens of other countries to due process regarding their desire to enter this country. These matters transcend the particulars of this case and would, if affirmed, establish precedents that would open the floodgates to lawsuit after lawsuit by almost any conceivable plaintiff, and a president hamstrung in carrying out immigration policy even under clear Congressional authority.
In other words, this is a big big deal, and one of the difficulties of writing about it and thinking about it is how revolutionary it is and the enormous number of issues involved that are of vital importance.
One thing we can safely say is that Jeff Sessions has his work cut out for him. Too bad he wasn’t on board when the administration decided to address the topic of immigration by releasing this EO. But what’s done is done, and now it’s important to remedy the situation.
There are many many articles to read that summarize the major elements and what’s at stake here. For starters, I suggest you take a close look at David French at National Review. French’s piece is entitled “The Ninth Circuit Just Issued a Dangerous Ruling against Donald Trump’s Immigration Order,” and here’s an excerpt:
…[T]he court ruled that the states of Washington and Minnesota had standing to assert legal claims against the Trump administration ”” mainly on behalf of their state universities and the scholars and students impacted by the order…
Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants ”” merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary…
…[T]he court …dramatically extended ”˜potential’ due-process rights beyond green-card holders to citizens from jihadist and jihadist-torn countries seeking to enter the nation for the first time. After an extended discussion of the due-process rights of permanent legal residents of the United States (an unobjectionable and just proposition), the court specifically declined to limit the injunction to green-card holders ”” or even to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” Instead (and incredibly) it said this:
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel,408 U.S. 753, 762-65 (1972).
The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are “potential claims” regarding “possible due process rights” even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this “authority” to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishing.
…[T]he court [also] cracked open Pandora’s Box ”” noting that it will likely consider Trump’s campaign statements in determining whether the executive order violated the Establishment Clause… Never mind that the order plainly isn’t a Muslim ban, and never mind that [Trump’s] campaign statements weren’t made about the order in question. The mere fact that at one point he stated a desire to ban all Muslims may be used to cut through the “considerable deference” the court owes the president. While there is precedent for considering lawmaker motivations in the Establishment Clause context, the consideration of sweeping campaign statements (about a different kind of measure entirely) push that precedent to the breaking point.
French then goes on to add still another outrage perpetrated by the court when it wrote: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”
It is bizarre, to say the least, that the government failed to “point” to such evidence, which is readily available and can be fully documented by anyone with the capacity to mount a Google search. But (as French also points out), such proof is not necessary. The president’s power to decide whether such a risk exists is protective, not ex post facto and not subject to court review.
David French could never be mistaken for a Trump fan. But he recognizes the multifaceted danger this decision represents, not so much in terms of its immediate effect in stopping the EO for a while but in terms of what the court is saying about the law and its own power as a court. If SCOTUS ends up affirming the legal principles this court has decided to invent, it is hard to think of a limiting factor on court power. That is one reason to be very very careful about when to take any appeal to the Supreme Court.
I said it is hard to think of a limiting factor on court power, if SCOTUS ends up agreeing with these 9th Circuit lines of reasoning. But I can think of two possible limits, one for each non-judicial branch of government. The first is a president’s ability to appoint federal judges, and Trump will get to do some of that. The second is Congress’s power to control the size and function of circuit courts such as the 9th:
Republican Sens. Jeff Flake and John McCain of Arizona introduced legislation last month to carve six states out of the San Francisco-based court circuit and create a brand new 12th Circuit.
They argue that the 9th is too big, too liberal and too slow resolving cases. If they succeed, only California, Oregon, Hawaii and two island districts would remain in the 9th’s judicial fiefdom…
The court has a reputation as one of the most liberal in the country, in large part because of its makeup. Eighteen of the court’s 25 active judges have been appointed by Democrats.
The other branches of government are not entirely powerless in this fight.
[NOTE: See also this.]
I didn’t read the cases cited by the 9th and I am glad French did. No surprise that the 9th either distorted the holding or really expanded it. That’s what liberals do when they are on a court. Intellectually dishonest in order to get the policy result they want.
Of course we all know that as soon as there is a Democrat president then these same judges that are going to all these extremes to stop Trump will suddenly change their tune. It really is a scary situation where all kinds of things could be greatly affected by mostly faceless judges that may have been appointed by someone that hasn’t been president in 30-40 years (one of these 3 judges was a Carter appointee).
That needed repeating.
And, as many others have noted, in all 29 pages of the Ninth Circuit ruling, the statute authorizing the Executive Order, namely, 8 U.S.C. §1182(f), went unmentioned.
Rush Limbaugh today quoted a case from 1952 where Supreme Court Justice Jackson stated that courts have no jurisdiction in matters like this since they involve politics. He was quoting an article by Andrew McCarthy that I can’t locate.
Paul in Boston:
I saw that, too, and tried to Google the McCarthy article but could not locate it.
As far as I can tell, McCarthy hasn’t yet written more than a few sentences since the decision came out. I’m looking forward to what he has to say.
In theory could Congress or the pres just not fund the “vetting” which is currently going on? Has there been any est. Of the actual cost and a detailing of the process that goes into the vetting? Can they be made to pay for the vetting ?
The idiom; “drastic times require drastic measures” comes to mind.
In that vein, consider; “It Is Time To Abolish & Reorganize The Federal Courts”
“All the lower federal courts are a creation of Congress and can be abolished or reorganized at will. The ruling by Judge James Robart is the latest example of the extremism and dictatorial power of the courts. Obviously, we cannot have Judge Robarts running the foreign policy of the United States. He should have thrown the case out.”
Andrew McCarthy has tweeted a link to NRO’s editorial today, and I think perhaps he wrote it. In any case, it quotes from a 1948 Supreme Court ruling written by Justice Jackson that explains that decisions involving foreign policy are “political, not judicial” in nature, and are
The full editorial is here.
I heard today the 9th Circuit has a backlog of 13,000 cases awaiting review and hearings.
A single judge, Federal District or otherwise, should not have the power to stay the President. The cart needs to be righted (pun intended).
@Neo – Was going to link French’s article in a prior comment, glad you did.
Here is another, from the Editors, who have additional points…
http://www.nationalreview.com/article/444800/ninth-circuit-trump-immigration-order-ruling-separation-powers-national-security
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Also, this insight about the consequences of all this…
Hindsight is 20/20, but it was not hard to foresee that the Left would be gunning for Donald Trump … the goal would be to delegitimize him, humiliate him, crush him, using any weapon available.
But the White House didn’t see this – or did, and didn’t care. The order should have been crafted with care and precision, the relevant officials properly informed and instructed, an airtight legal defense prepared – but none of these things happened. Was this incompetence or recklessness? There is no third option. …
… the White House’s extraordinary bumbling on this initial measure has made it easier for the administration’s critics to make their favorite case: that the order is, in truth, nothing more than thinly veiled bigotry. And as the president tries to implement other elements of his immigration agenda, they’ll point back to this executive order as evidence of his “real” intentions.
When that happens, as it inevitably will, the White House will have no one to blame but themselves. – Ian Tuttle
http://www.nationalreview.com/article/444816/trump-immigration-order-ninth-circuit-ruling-debacle-consequences
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Thanks to this “bumbling”, trump’s admin opened the door for the left…
“The political branches’ plenary authority to control alien entry into the United States, and the heightened deference owed by courts to the national-security judgments of the political branches, are precisely at stake in the matter of President Trump’s executive order.“
http://www.nationalreview.com/article/444800/ninth-circuit-trump-immigration-order-ruling-separation-powers-national-security
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According to trump’s own standard, should he be fired for this?
@Ann – see that you already posted the link. Took me too long to put together that last comment and missed yours. 😉
Reckless and rather stupid for the district court and the 9th circuit. Haven’t these people paid any attention to Trump?
Not only should the 9th Circuit be broken up as Sen. Flake wants, I think it should be abolished altogether and its judges reassigned to other courts while two or three new circuit courts are established in its place and staffed with Trump appointees. Too political? Maybe, but the courts have long since decided to be as much political as judicial in their acts now it is time for them to take a big dose of political medicine.
By the way, Yale Law Review has an article on how to get rid of federal judges altogether. I haven’t read it yet, but it seems timely.
Trump was 100% correct — they’re not judges, they (most of the federal judges in the 9th Circuit) are leftist politicians wearing black robes. Trump should appeal en banc, then go back to the district court, then do whatever else he needs to do to stall long enough to get Gorsuch confirmed. And fill the four vacant seats on the 9th Circuit Court of Appeals, and the 15 vacancies in the District Courts of the 9th..
Compare this statement cited in the article…..
“Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants – merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. ”
with the costs cited in this article on the impact of refugee children being placed in public schools….
http://nypost.com/2017/01/31/how-trumps-refugee-order-targets-educational-injustice/
Specific points in the article is that refugees are placed in smaller towns which is impacting education for all children. Attempts to bring the refugees up to speed with English immersion programs resulted in ACLU suits forcing mainstreaming the students.
You ain’t seen nothing yet, Neo. I predict the lower courts will put a stop to any deportations, too. Also, I predict every single EO Trump signs, plus much of the coming legislation he signs will be overturned by a court somewhere.
What is coming is going to get very, very ugly- and quickly at that.
Another on-point article
https://www.conservativereview.com/commentary/2017/02/the-full-case-for-why-courts-have-no-jurisdiction-over-trumps-immigration-order
Yancey Ward Says:
February 11th, 2017 at 11:52 am
You ain’t seen nothing yet, Neo. I predict the lower courts will put a stop to any deportations, too. Also, I predict every single EO Trump signs, plus much of the coming legislation he signs will be overturned by a court somewhere.
What is coming is going to get very, very ugly- and quickly at that.
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It’s already ugly and it started before Trump’s inauguration. I agree with commenters who pointed out the protestors and courts would be pushing back against any Republican president. Maybe Trump’s “incompetence” is making their obfuscation easier, but it may also be making it more visible, because he doesn’t back down when they push him.
Another astute observer:
http://libertyunyielding.com/2017/02/09/ninth-circuit-upholds-stay-trumps-immigration-order/
I’m just hearing on Fox News that the Ninth Circuit ruling – which I haven’t seen published yet – took a peculiar premise: that although federal courts have uniformly agreed that a presidential action like Trump’s is not reviewable, that doesn’t mean it isn’t reviewable by the courts.
Since no rights of American citizens are at stake, and no question at issue on what the president’s po.wers are, the implication here is that the courts are empowered to have an opinion different from the president’s on national security matters. That is a political, not a judicial judgment. …
the American people will not agree to simply be led as sheep to the slaughter by this outcome. It is very dangerous to remove from the people all hope of the rule of law prevailing, and their justifiable expectations being upheld.
Three, the reality that our courts are so unreliable now has been exposed, in an attention-grabbing way that people will understand, perhaps even better and more broadly than they understood the bad Obamacare ruling on the insurance mandate. And the “winners” in the ruling have taken the mask off entirely, and are prancing around gloating about their victory over the clear will and obvious security interests of the American people. The opponents of Trump’s order quite evidently want to act against our security interests, and are thrilled that two courts have ensured that that will happen….
If our borders aren’t protected, and our immigration policies judicious and sound, our laws become unenforceable. If laws don’t mean what they say – if judges keep suddenly reinterpreting them – they can’t be enforced in a reliable way that allows the people to go about their business, unburdened by constant worries about their lives and property. It isn’t possible to take a jackhammer and blowtorch to the law, and then expect it to protect you later. No matter who or where you are, you won’t be immune. Sooner or later, the consequences of lawlessness get around to everyone.
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Cue the usual quote from “Man for All Seasons”