Later On

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How the Ninth Circuit Did It: Due Process Sinkhole Swallows Trump’s Executive Order Whole

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jffJane Chong has an interesting post at Lawfare:

Last week, U.S. District Judge James Robart (a George W. Bush appointee) sent President Trump into a Twitter tizzy by issuing a temporary restraining order (TRO) enjoining the enforcement of Trump’s immigration executive order. Yesterday, a three-judge panel of the Ninth Circuit issued a per curiam opinion denying the government’s motion to stay the TRO.

In a quick reaction piece last night, Ben critiqued the decision for failing to even mention 8 U.S.C. § 1182(f), the statutory basis for Trump’s executive order. (Apparently, Trump was also personally bothered by this failure.) That’s the provision of the Immigration and Nationality Act (INA) that gives the president sweeping authority to suspend or restrict, “by proclamation, and for such period as he shall deem necessary,” the entry of all aliens or any class of aliens into the United States whenever he “finds that the entry . . . would be detrimental to the interests of the United States.”

Ben’s right; it was strange to leave out the citation, given it is the crux of the government’s argument for the president’s unbridled discretion to bar aliens from the country. But after reviewing the opinion and the parties’ filings, I don’t think the court’s omission of the citation was accidental or that its omission of a § 1182(f) discussion is surprising. This is a clever, if undisciplined, opinion that sought to get to its holding (denial of the stay) without tripping legal landmines or weighing in on big unresolved questions. The court ignored the elephant in the room–the statutory and constitutional powers conundrum–in favor of a two-step dance: (1) a high-level defense of the judicial power to review executive decisions, including in the national security arena, and (2) an in-the-weeds approach to applying the traditional stay factors–one that opts against a macro-analysis of the government’s likelihood to prevail on the constitutional powers question and relies instead on a superficial micro-analysis of the persuasiveness of the government’s case in overcoming allegations of individual constitutional rights violations (effectively adopting the approach of States Washington and Minnesota in their brief (pp. 14-20)).

Note there is squishiness here about the right way to analyze the stay factors in part because the parties to the suit are states and not individuals. (Consider: what does it mean, exactly, for the government here to be “likely to be successful on the merits” vis-à-vis not particular individuals with a particular immigration status who are challenging the lawfulness of the ban as applied to their case but rather a state asserting the rights and interests of so many differently situated individuals?)

  1. The high-level discussion comes first. This whole portion of the court’s analysis amounts to a loud statement of separation-of-powers first principles and didn’t require the court to discuss § 1182(f) or a do a deep dive into the nuances of the president’s Article II powers. The court stayed far away from blockbuster problems like how to reconcile § 1182(f)’s sweeping grant of executive discretion with the anti-discrimination provision of 8 U.S.C. § 1152(a)(1)(A), which provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.” Sticking instead to low-hanging fruit, the court rejected the more extreme assertions of executive authority that the government built on top of § 1182(f), i.e., that the president has “complete discretion” and “unreviewable” power to exclude aliens from the U.S. (pp. 2, 15). The court was able to do this with little more than pointed, attention-grabbing citations to major cases attesting to the judiciary’s role in checking the political branches: Boumediene v. Bush, 553 U.S. 723 (2008), Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), Ex parte Milligan, 71 U.S. 2 (1866), and so on.
  2. So emphatically, if abstractly, the court made out its principled defense of the judiciary’s power to review executive decision-making as a general matter. Check. The meat of the Ninth Circuit’s approach after that–its analysis of the stay factors–really boils down to the technical choices reflected in this paragraph: . . .

Continue reading.

In another Lawfare post, a cogent case is made that these questions should be resolved by Congress, not the courts, since this sort of action falls directly within Congress’s bailiwick. But the US Congress is currently highly dysfunctional, so it is incapable of doing its job.

Written by LeisureGuy

10 February 2017 at 2:46 pm

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