Late yesterday, the Ninth Circuit Court of Appeals declined to reinstate President Trump’s Executive Order barring travel from seven majority Muslim nations, upholding a Temporary Restraining Order entered by a Federal District Court Judge in Washington a week ago:
WASHINGTON — A federal appeals panel on Thursday unanimously rejected President Trump’s bid to reinstate his ban on travel into the United States from seven largely Muslim nations, a sweeping rebuke of the administration’s claim that the courts have no role as a check on the president.
The three-judge panel, suggesting that the ban did not advance national security, said the administration had shown “no evidence” that anyone from the seven nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — had committed terrorist acts in the United States.
The ruling also rejected Mr. Trump’s claim that courts are powerless to review a president’s national security assessments. Judges have a crucial role to play in a constitutional democracy, the court said.
“It is beyond question,” the decision said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
The decision was handed down by the United States Court of Appeals for the Ninth Circuit, in San Francisco. It upheld a ruling last Friday by a federal district judge, James L. Robart, who blocked key parts of the travel ban, allowing thousands of foreigners to enter the country.
The appeals court acknowledged that Mr. Trump was owed deference on his immigration and national security policies. But it said he was claiming something more — that “national security concerns are unreviewable, even if those actions potentially contravene constitutional rights and protections.”
Within minutes of the ruling, Mr. Trump angrily vowed to fight it, presumably in an appeal to the Supreme Court.
“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Mr. Trump wrote on Twitter.
At the White House, the president told reporters that the ruling was “a political decision” and predicted that his administration would win an appeal “in my opinion, very easily.” He said he had not yet conferred with his attorney general, Jeff Sessions, on the matter.
The Supreme Court remains short-handed and could deadlock. A 4-to-4 tie there would leave the appeals court’s ruling in place. The administration has moved fast in the case so far, and it is likely to file an emergency application to the Supreme Court in a day or two. The court typically asks for a prompt response from the other side, and it could rule soon after it received one. A decision next week, either to reinstate the ban or to continue to block it, is possible.
(…)
Trial judges nationwide have blocked aspects of Mr. Trump’s executive order, but no other case has yet reached an appeals court. The case in front of Judge Robart, in Seattle, was filed by the states of Washington and Minnesota and is still at an early stage. The appeals court order issued Thursday ruled only on the narrow question of whether to stay a lower court’s temporary restraining order blocking the travel ban.
The appeals court said the government had not justified suspending travel from the seven countries. “The government has pointed to no evidence,” the decision said, “that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
The three members of the panel were Judge Michelle T. Friedland, appointed by President Barack Obama; Judge William C. Canby Jr., appointed by President Jimmy Carter; and Judge Richard R. Clifton, appointed by President George W. Bush.
They said the states were likely to succeed at the end of the day because Mr. Trump’s order appeared to violate the due process rights of lawful permanent residents, people holding visas and refugees.
The court said the administration’s legal position in the case had been a moving target. It noted that Donald F. McGahn II, the White House counsel, had issued “authoritative guidance” several days after the executive order came out, saying it did not apply to lawful permanent residents. But the court said that “we cannot rely” on that statement.
“The White House counsel is not the president,” the decision said, “and he is not known to be in the chain of command for any of the executive departments.” It also mentioned “the government’s shifting interpretations” of the executive order.
In its briefs and in the arguments before the panel on Tuesday, the Justice Department’s position evolved. As the case progressed, the administration offered a backup plea for at least a partial victory.
At most, a Justice Department brief said, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future” should be allowed to enter the country despite the ban.
The appeals court ultimately rejected that request, however, saying that people in the United States without authorization have due process rights, as do citizens with relatives who wish to travel to the United States.
The court discussed, but did not decide, whether the executive order violated the First Amendment’s ban on government establishment of religion by disfavoring Muslims.
It noted that the states challenging the executive order “have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban.’” And it said, rejecting another administration argument, that it was free to consider evidence about the motivation behind laws that draw seemingly neutral distinctions.
But the court said it would defer a decision on the question of religious discrimination.
“The political branches are far better equipped to make appropriate distinctions,” the decision said. “For now, it is enough for us to conclude that the government has failed to establish that it will likely succeed on its due process argument in this appeal.”
The court also acknowledged “the massive attention this case has garnered at even the most preliminary stages.”
“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies,” the decision said. “And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”
“These competing public interests,” the court said, “do not justify a stay.”
Turning first to the opinion itself, it’s clear that the Judges found the arguments of the states far more convincing than the arguments of the Federal Government. One of the primary weaknesses in the Federal case that the opinion focuses on, for example, is the fact that there’s basically no evidence on the record to support the contention that the seven nations covered by the ban are particular points of danger for terrorists entering the United States. During the oral argument of this case, the attorney for the Federal Government essentially argued that the President’s determination that there was a national security threat from these nations alone, while ignoring potential threats from nations such as Saudi Arabia and Pakistan that actually had been the source of immigrants who had carried out terror attacks in the United States, was not reviewable at all by Courts. This was a position that clearly didn’t sit well with the Ninth Circuit panel during oral argument, and the fact that the Justice Department attorney cited no controlling legal authority for this position meant that it gave them an opening to pick his argument apart. From there, the outcome of this ruling was seemingly inevitable.
One odd part of the opinion issued last night is the fact that the Judges make reference to statements that President Trump made on the campaign trail when he was talking about a broader ban on immigration by all Muslims, something that the states challenging the order that was issued as evidence of the intent of the order and the question of whether or not it discriminated on the basis of religion or ethnicity. Writing at The Volokh Conspiracy, Eugene Kontorovich of the Northwestern University School of Law argues that this is a highly unusual and troubling step for judges to take:
The 9th Circuit’s ruling Thursday throws open a huge door to examinations of the entire lives of political officials whose motives may be relevant to legal questions. This introduces more uncertainty and judicial power into legal interpretation than even the most robust use of legislative/administrative history. Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories.
More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.
Moreover, the Constitution’s oft-forgotten opinion clause supports disregarding pre-inauguration statements. The Constitution puts at the president’s service the officials of the administration and requires they advise him as asked. What it means here is that the president must be seen as the unitary head of the executive branch and the pinnacle of a process of executive decision-making. That process is the only constitutionally recognized executive process. A candidate’s possible plans or promises are not part of the process. The opinion clause also suggests a president cannot be bound by the oral statements of federal officials (like Rudy Guiliani), especially when not “upon any Subject relating to the Duties of their respective Offices.”
By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.
This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.
Kontorovich’s colleague at Volokh Ilya Somin disagrees:
The Supreme Court has long held that facially neutral laws and regulations may be invalidated if the true purpose behind them is to discriminate on the basis of race, ethnicity, religion, or some other suspect classification. If facially neutral policies are exempt from scrutiny for discriminatory motive, then a wide range of prejudicial policies would have to be upheld. For example, many Jim Crow-era policies targeting African-Americans were facially neutral, including poll taxes and literacy tests intended to keep blacks from voting.
In determining whether discrimination was the motivation behind the challenged action, the Supreme Court requires judges to make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including “[t]he historical background of the decision” and “[t]he specific sequence of events leading up to the challenged decision.”
Despite Eugene Kontorovich’s contrary view, there is no reason to exempt campaign statements from this kind of inquiry. When a policy is a direct outgrowth of a major theme of a candidate’s campaign, as is surely true here, campaign statements are clearly part of “the historical background of the decision” and “”[t]he specific sequence of events leading up to [it].” As Trump himself likes to emphasize, campaign promises are often an important indication of political leaders’ intentions. For courts to ignore that would be to close judicial eyes to obvious political realities.
That does not mean that any Trump administration policy that seems to harm Muslims should automatically be ruled unconstitutional. A policy less clearly linked to his bigoted statements and backed by a stronger security justification than the extremely weak one here, would be more likely to be upheld. As the Ninth Circuit notes, the administration has presented only very flimsy evidence that its order is backed by legitimate security needs, which is one of the reasons why it refused to lift the trial court’s order staying implementation. Things might be different in a case where the government could more plausibly point to a genuine nondiscriminatory rationale for its policies.
It strikes me that Somin has the better argument here. While I don’t think that things a candidate says on the campaign trail should be controlling under all circumstances, the idea that they should not be considered at all in trying to determine whether there is discriminatory intent behind a particular statute or action makes little sense. A candidate who spent an entire campaign promising to pass a law that targets a particular minority group and then turns around and takes an action that only impacts a limited subset of that group should not be able to get away with the argument that what they said on the campaign trail is irrelevant for legal purposes. This is especially true when there is evidence to corroborate the argument that the limited version of the law in question grew out of a desire to fulfill the original promise. In this case, the Court had before not just Trump’s original comments on the campaign trail about a Muslim ban, but also comments by Rudy Giuliani, who has served as an adviser to Trump since the election, and who said in media interviews that Trump went to him and asked how he could pull off a limited version of his Muslim ban that might withstand immediate dismissal by the Courts. Such evidence doesn’t necessarily prove a discriminatory intent but it does provide at least some evidence on that topic for the Court to consider. Therefore, there’s no reason to exclude it. The fact that Trump’s own words ended up being used against him should teach him a lesson, but it probably won’t.
I noted in my post earlier this week that the tone of the oral argument led me to believe that the panel would uphold the Temporary Restraining Order and, ultimately, that’s what happened here. What was surprising upon reading the opinion last night is the fact that the case was a unanimous one, including not just the two Judges appointed by Democratic Presidents, but also Judge Richard Clifton, who was appointed by President George W. Bush. During the oral argument, Clifton seemed far more skeptical of the case presented by Washington and Minnesota than any of the other Judges. As a result, I was expecting that we’d see the TRO upheld by a 2-1 majority. The fact that the case was unanimous doesn’t have any immediate legal relevance, of course, but it does indicate that the Plaintiffs seem to have presented a far more convincing case so far than the Federal Government. It may, however, provide some indication of the direction of where the case may go in further proceedings unless the Trump Administration decides to take some steps to drastically change the situation on the ground.
As it stands, the Administration has several options available to it, some of which seem to have a better a chance of success than others.
One option would be to seek a review of this panel decision before the entire Ninth Circuit. An en banc appeal like this, however, is not a matter of right and would only be possible if a majority of the Judges agreed to take the matter up. More often than not, requests for en banc appeal are denied, so it seems unlikely the Federal Government will exercise that option. The second option, of course, would be to appeal the matter to the Supreme Court and hope that they can somehow create a majority to vacate the TRO out of a Court that is presently equally divided between its conservative and liberal branches. Were there a 4-4 tie in the Court, then the Ninth Circuit ruling would stand and the case would return to Judge Robart in the District Court for further briefing and a hearing on whether or not the TRO should be converted to a Preliminary Injunction that would remain in effect at least until a final ruling from the District Court, which could be months from now at the earliest. A third option would be to accept the Ninth Circuit ruling and return to District Court and argue over the imposition of a Preliminary Injunction. In this proceeding, the Federal Government would be able to present more evidence to the Court to support the President’s decision to ban travel from the seven countries in question, a weakness that plays a prominent role in the reasoning in both Judge Robart’s TRO and in the Ninth Circuit’s ruling.
As a final option, the Administration could decide to bypass the current legal controversy altogether by redrafting the original Executive Order in order to address many of the flaws that make it vulnerable to legal challenge. These vulnerabilities include the fact that the order does not provide any protection for people who are Permanent Residents of the United States, fails to account for people who had already cleared the review process and obtained visas to travel to the United States, and people who had previously passed this review process and been granted visas to the the U.S. in the past and traveled here. These are the three groups of people are the ones who have the strongest due process and equal protection claims against the order, and an order that specifically states that they are excluded from the ban would arguably have a better chance of withstanding scrutiny. This strategy has been suggested by several legal analysts in the wake of last night’s ruling since it seems as though taking the matter to the Supreme Court is most likely to lead to a 4-4 tie that keeps the Ninth Circuit ruling in place or, worse for the Administration, a 5-3 ruling due to the fact that Justice Kennedy ended up siding with the Court’s liberal wing. Additionally. NBC News is reporting this morning that the Administration is considering this idea, but that it would still continue to defend the current Executive Order in court rather than withdrawing it:
.@JoeNBC reports: Sources say WH is working on redrafting an executive order on travel ban suspension https://t.co/IU9yvbCxf0
— Morning Joe (@Morning_Joe) February 10, 2017
Given the comments coming out of the White House, though, it seems as though the most likely outcome would be that the Administration takes the case to the Supreme Court even while attempting to draft a narrower order, meaning that next week will likely be another week of briefing and oral argument by the parties with a decision on the stay request coming from the Court late next week at the earliest.
Here’s the opinion:
Washington et al v. Trump et al Opinion by Doug Mataconis on Scribd
