U.S. Politics

THE VULNERABILITIES IN THE NINTH CIRCUIT’S EXECUTIVE-ORDER DECISION

President Trump signs an executive order, on January 27th, imposing a travel ban on refugees and a ninety-day hold on travellers from Syria, Iran, and five other Muslim-majority countries.

President Trump signs an executive order, on January 27th, imposing a travel ban on refugees and a ninety-day hold on travellers from Syria, Iran, and five other Muslim-majority countries.PHOTOGRAPH BY CARLOS BARRIA / REUTERS

THE NEW YORKER

The Ninth Circuit Court of Appeals delivered an extraordinary rebuke to President Trump yesterday. The politically diverse panel (two Democratic appointees, one Republican) rejected just about every argument put forth by the Justice Department and left intact a temporary restraining order that prevented Trump’s ballyhooed executive order on immigration from going into effect while a federal court in Seattle considers a challenge brought by the states of Washington and Minnesota. Trump’s political adversaries, starved for victories, celebrated.

But is the Ninth Circuit ruling correct on the law? And what are the prospects for the underlying case as it continues through the legal system toward an expected dénouement in the Supreme Court? Short answer: one can’t say for sure. But I think there are several vulnerabilities in the Ninth Circuit opinion that may help the Trump Administration pull this case out in the end.

Here are four areas of concern.

Standing. Article III of the Constitution says that the federal courts may only decide cases and controversies. The Supreme Court has interpreted this command to mean that only plaintiffs who can claim an “injury in fact” caused by the defendants are allowed to bring cases. If you’re simply interested in a case or, say, alarmed by something the President does but can’t claim a real injury, you’re said to lack standing, and the courts will toss your case without addressing the merits.

What injury did the states of Washington and Minnesota suffer? According to the Ninth Circuit, “the states allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries.” The faculty members and students themselves would surely have standing to sue; most of the other cases percolating through the courts involve challenges by individuals whose travel has been affected by the order. But the harm to the universities is pretty attenuated. And it’s worth noting that the Justices of the Supreme Court (and Chief Justice John Roberts in particular) have been sticklers on the standing rule and haven’t hesitated to toss cases on this ground.

Presidential power. Trump issued the executive order pursuant to his power under this federal law:

Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, 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.

What does the Ninth Circuit say about this provision? Nothing. Remarkably, the opinion does not quote or even cite the relevant law. (Benjamin Wittes makes this point nicely.) To be sure, the President’s exercise of his authority under this law must be consistent with the Constitution. But the words of the statute must be taken seriously as well. They amount to a broad grant of power in an area (national security) where the courts have traditionally given the President a relatively free hand. The Ninth Circuit should have engaged with this statutory text and explored its relation to the commands of the Constitution.

So how does the executive order fare under constitutional scrutiny?

Due process of law. The primary ground for the Ninth Circuit’s opinion is that “the Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to an individual’s ability to travel.” But in making this finding, the judges refer primarily to the order’s effect on lawful permanent residents, i.e., green-card holders. The main effect of the order, though, is on other immigrants: refugees and visa applicants and visa holders. By definition, they have fewer rights to due process than green-card holders. (They can have some, but are not necessarily entitled to a full panoply of rights to notice and hearing.) The court basically ignores this distinction between green-card holders and others. The language of the executive order, which doesn’t explicitly protect green-card holders, bears significant blame for this confusion. Still, the Supreme Court may take a closer look.

Religious discrimination. Most of the criticism of the executive order has focussed on the possibility of religious discrimination. Many believe that the order represents a “Muslim ban,” as promised by Trump during the campaign, and such a rule would run afoul of the First and Fourteenth Amendments. As the Ninth Circuit notes, the plaintiffs argue that the order is unconstitutional “because it was intended to disfavor Muslims.” The judges say that “the States’ claims raise serious allegations and present significant constitutional questions,” but they don’t come out and say that the order represents religious discrimination. By its own terms, the order does not mention Muslims, or any other religion. Of course, it applies only to seven majority-Muslim countries, and it offers special solicitude for applicants from religious minorities in these countries. But the laws of immigration involve making distinctions about which people may enter the country; here again the President enjoys wide latitude. It may be that the plaintiffs can prove that the order represents religious discrimination, but they haven’t done so yet.

These issues represent problems for the challengers to Trump’s executive order. None are necessarily fatal. The botched launch of the order, as well as the President’s crude attempts to disparage the judges who evaluated it, certainly poisoned the atmosphere in which the case was heard. But it’s clear that the Justice Department will keep pressing the defense of the executive order, and the plaintiffs’ celebrations, while understandable, may turn out to be premature.

Jeffrey Toobin

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