The Trump administration confirmed Sunday they are considering issuing new executive orders about immigration now that courts have halted an initial order restricting travel from seven countries. “The president’s powers here are beyond question,” said Trump aide Stephen Miller, responding to court orders to the contrary. The administration is also considering accelerating the action to the U.S. Supreme Court.
Most significantly, on February 9, a three-judge panel of the Ninth Circuit Court of Appeals upheld a lower-court temporary restraining order (“TRO”) which held that the U.S. government could not enforce President Trump’s executive order on immigration.
The ruling is no surprise. Two of the judges were appointed by presidents Carter and Obama. And it is the Ninth Circuit, which is not exactly a hotbed of conservative thought. After hearing the oral arguments, my only question was whether it would be a 2-1 ruling against President Trump, or a 3-0 ruling. Turns out, we’re not even 100 percent sure on that front (more on that later).
More surprising was just how sloppy the opinion was. It was weak on facts. Weak on law. Weak on analysis. Heavy on conjecture and supposition and misspeak. It’s clear the judges were simply going through the exercise of writing an opinion so they could get to the outcome they wanted. The problem is, the outcome they wanted is, legally speaking, wrong.
What Legal Standard to Follow
Traditionally, courts have respected the separation of powers doctrine, which provides that Congress and the president have exclusive authority to regulate immigration and handle sensitive matters of national security. Courts have generally shied away from interfering in these areas, which is why the Guantanamo Bay detention facility continues to hold prisoners involved in 9/11. Especially on national security matters, courts generally stay out of the discussion. This court did not. It jumped right in, and provided an incorrect and misguided analysis.
One of the first things you learn in law school is to determine the proper standard of review when looking at a case. On page 13 of the opinion, the Ninth Circuit Court stated it is “an uncontroversial principle” that it must give “substantial deference to the immigration and national security policy determinations of the political branches.” However, by page 14, the court made deference to the executive branch seem like a mere suggestion.
By page 16, deference was only encouraged where a court lacked information on the subject matter, and could be avoided completely “to secure the protection that the Constitution grants to individuals, even in times of war.” By page 18, under the title “Legal Standard,” the court did away with the concept of deference all together, deciding to analyze the case just as it would with a normal TRO. So much for consistency, or following long-established law.
What Does the Law Say?
Next, generations of law professors teach lawyers to look to the controlling law to provide guidance on what an appropriate outcome should be. Here, the law is very clear. In 8 USC 1182(f), passed in 1952, Congress gave the president the power to “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” “whenever the President finds that the entry . . . [of such persons] would be detrimental to the interests of the United States.” This is plain as day. It’s been enforced since 1952. Unless the court somehow found this law to be unconstitutional, it is very clear that President Trump’s executive order was on firm footing.
Unfortunately, the court didn’t mention this law even once in its 29-page opinion. It didn’t even hint at the law’s existence as the basis for the executive order, even though multiple presidents (including President Obama) used the same law to exclude entire classes of people from the country, and the executive order referenced the law multiple times.
Instead of focusing on the strong powers granted the president by relevant law that has been found valid for the past 65 years, the court chose to focus on the specific constitutionality of the executive order itself, as if it had no legal basis whatsoever.
Do Noncitizens Have Constitutional Rights?
So, the question the court asked was whether the Trump administration could prove that its order complied with the Constitution’s Due Process clause. However, it is not at all clear that the persons affected by the executive order even have constitutional rights. Of course, that wasn’t going to stop this court.
The court said that permanent resident aliens (those with a green card) likely had some constitutional rights. The Trump administration clarified that the executive order would not apply to those with green cards. Did the court give “substantial deference” to the administration’s statement? Nope. Instead, it questioned whether the White House counsel was authorized to make such a statement, or had the authority to enforce it. They questioned why President Trump didn’t draft a new executive order. They even went so far as to imply that President Trump may be lying until after the hearing was over to fool the court. “Substantial deference,” my eye.
The court then went on to say that the executive order would violate the constitutional rights of those who hold visas, illegal immigrants, and merely “want” to someday come to the United States but don’t yet have a visa. When the Trump administration pointed out the Constitution did not necessarily provide these individuals any rights, the court admitted that these people only had “potential claims regarding possible due process rights.” But, then, utilizing the exact opposite of “substantial deference,” the court held that its reasoning in matters of immigration and national security was more valid than the Trump administration’s because of these “potential claims” and “possible rights.”
The government argued that the TRO was overly broad and extended protections to those who have no constitutional rights. The court actually agreed, stating “there might be persons covered by the TRO who do not have viable [constitutional] claims.” But the court didn’t really care, saying “it is not our role” to limit the TRO. It demanded President Trump re-write the executive order to fit the overly-broad TRO, rather than limit the defective TRO to something even approximating a lawful order.
The Court’s Balancing Test Puts Your Safety in Last Place
This is where you should begin to get angry. After the court found it likely that Trump’s executive order violated constitutional rights of people who have no constitutional rights, it put those make-believe “rights” ahead of the country’s national security, and your right to be safe in your home, workplace, and place of worship. The court put the rights of the following people ahead of your safety:
- Two visiting scholars (one without a visa) who wanted to spend time at Washington State University;
- Three “prospective employees” of the University of Washington who had no visas; and
- Two medicine and science interns without visas.
Yes, the court found that the make-believe “rights” of seven people (only one of which actually had a visa, and none of which were in the country) trump your right to live free and without fear. Their “rights” trump the national security interests of the U.S. government and its 300 million citizens. This is 100 percent wrong.
When presented with the fact that all seven countries Trump’s executive order affected were labeled “countries of concern” by the Obama administration (more than 60 terrorism-related arrests have occurred since 9/11 involving citizens of these countries), the court essentially said it didn’t care. Unless it was presented with something really juicy, like intelligence it has no authority to view, it would give no deference to the government’s argument that national security concerns must be taken into account. It’s a shameful and sad outcome.
What the Court Should Have Done
The right outcome is pretty simple, and doesn’t take 29 pages to extrapolate. The analysis should have gone something like this:
“It’s clear that Congress has given the president significant powers to exclude foreigners from immigrating to the United States when he believes such immigration would be detrimental to the national interest. This law is legal, and has been used by presidents for the last 65 years. President Trump made the determination that citizens from seven different countries that have sponsored terrorism worldwide pose a security concern to the United States and its citizens. The appropriate legal standard shows we must give President Trump’s decision substantial deference. Reviewing President Trump’s actions with substantial deference, it is clear that the order is legal, valid, and meant to protect the United States and its citizens from harm.”
The fact the analysis didn’t go that route and needed 29 pages to misspeak, contradict, and misinterpret its way to an improper decision that puts us all at risk, should give us all pause. You want to know what’s even lousier? As a per curiam order, none of the three judges even had the courage to sign his or her name.