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The Ninth Circuit Slam Dunks Trump

February 10, 2017

In considering yesterday’s federal appeals court decision on President Donald Trump’s Executive Order 13769, it’s important to be clear about two things.

First, yesterday’s decision concerned the implementation of only five sub-sections of the executive order. The executive order consists of 11 sections and 27 sub-sections, most of which have not been challenged in any court, and many of which are indisputably valid and within the scope of presidential power.

Second, the appellate court’s decision was very, very preliminary. Politically, the decision may be the biggest judicial smack-down of any American president in his first three weeks in office; legally, the decision is nowhere close to the last word on the case.

There’s another important point that, although not especially relevant to yesterday’s decision, has been all but lost in the media coverage: Trump’s executive order deals entirely with legal entry into the United States. Even if fully and flawlessly implemented, the executive order would keep not so much as one undocumented alien from entering the country.

Now, let’s consider last night’s decision.

President Trump issued the executive order on Friday, January 27. The State of Washington sued the following Monday, claiming that portions of the executive order violate several federal constitutional and statutory provisions. At the same time, Washington asked the federal trial court in Seattle for a temporary restraining order blocking implementation of five sub-sections of the executive order. A temporary restraining order is an emergency measure – it is sought and issued on an almost summary basis, without the extended litigation that is necessary for a full exploration of the facts or a thorough debate over the applicable law.

In this case, the federal trial judge assigned was James Robart, a Washingtonian who went to law school at Georgetown, then spent 30 years in private practice, as a civil litigator, before President George Bush nominated him to the federal bench in 2003. The State of Minnesota joined Washington’s lawsuit on February 1, and the two states filed a revised application for a temporary restraining order. Last Friday, February 3, Judge Robart became one of five federal judges around the country to issue temporary restraining orders against implementation of parts of the Trump executive order.

Judge Robart’s order barred implementation of portions of five sub-sections of the executive order:

  • Section 3(c) suspends for 90 days the entry into the United States of aliens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
  • Section 5(a) suspends the entire Refugee Admissions Program for 120 days.
  • Section 5(b) directs that, after the end of the suspension of the Refugee Admissions Program, priority will be given to “refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”
  • Section 5(c) suspends indefinitely entry of all Syrian refugees.
  • Section 5(e) states grounds for case-by-case waivers of the exclusion of refugees, including where admission of those refugees is in the national interest, and specifies that admission of a refugee is in the national interest “when the person is a religious minority in his country of nationality facing religious persecution.”

On Saturday, February 4, the Trump administration appealed to the United States Court of Appeals for the Ninth Circuit, and applied for an emergency stay of Judge Robart’s order. The next day, the Court of Appeals denied the request pending briefing. Briefing was done on Sunday and Monday, with oral argument conducted by conference call on Tuesday. Yesterday, in a 29-page decision, the three-judge appellate panel unanimously rejected President Trump’s request for a stay of Judge Robart’s order. Thus the five contested portions of the executive order remain unenforceable pending further litigation.

The three-judge panel consisted of appointees of presidents Jimmy Carter, George W. Bush and Barack Obama. The panel’s decision was issued “per curiam,” which is Latin for “by the court,” which means that authorship of the decision is attributed to the three judges as a whole, and not, as is usually the case, to any one of them. The per curiam form is often interpreted by court-watchers as a signal – one theory is that identifying the decision with the entire court is intended to make it a stronger statement than if it is written by one judge and merely agreed to by the other two. Whether the panel here meant to send such a signal will have to await a memoir yet to be written.

The first big issue facing the court was whether the states of Minnesota and Washington have legal standing to challenge the executive order. Standing generally requires that the plaintiff have a direct injury, not just a theoretical objection. The judges disposed of that question relatively easily: Minnesota and Washington each has a state university system that is legally an arm of the state itself; each university system has both present and incoming students and faculty who are covered by the executive order and whose travel is therefore restricted by the executive order; the universities’ missions of research and education will be impaired if travel by their students and faculty is restricted as provided by the executive order.

Next the court had to consider the Trump administration’s assertion that the executive order was “unreviewable” in court. The court pretty well did that claim in by describing it: “the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The court called that position unprecedented, and gave a rather long list of precedents that say exactly the opposite. While a president’s national security decisions are entitled to a deferential review, the court concluded, they are not altogether exempt from review.

The court then turned to the most important legal issue: whether the Trump administration is likely to succeed in its appeal of Judge Robart’s order. “Likelihood of success” is one of two essential legal elements to an emergency stay. Although Minnesota and Washington asserted a number of constitutional and statutory claims in their lawsuit, the court of appeals needed to consider only one: the Due Process Clause of the Fifth Amendment to the Constitution.

That clause says that the government may deprive no “person” of “life, liberty, or property without due process of law.” “Persons” does not mean just “citizens”; the Supreme Court has made clear that the Due Process Clause applies to anyone who is physically present within the United States, even if she is here illegally. No one who is here may be sent away without some form of opportunity to contest the sending away.

Furthermore, “persons” includes at least some aliens who have been in the United States, have left temporarily, and are trying to return. This certainly includes resident aliens – that is, green card holders. On this point, attorneys for the federal government argued that the resident alien point was moot, because White House counsel had said that Trump’s executive order didn’t apply to green card holders. The court responded that the government had made no showing that White House counsel had the authority to modify a presidential executive order, or that such a modification would be binding on all of the agencies and officials charged to implement the executive order. “The White House counsel is not the president,” the court concluded with a light touch of sarcasm, “and he is not known to be in the chain of command for any of the Executive Departments.”

And anyway, the court went on, “persons” definitely includes visa holders who are in the United States, who would like to travel abroad but can’t because the executive order would bar their return. “Persons” might also include refugees or other would-be immigrants with relationship to people or institutions in the U.S. that have “rights of [their] own to assert” – like the state universities in Minnesota and Washington, I suppose.

Next the court considered the question of irreparable harm – the second of the two essential elements to an emergency stay. The question here was whether the United States would suffer harm that could not be fixed later in the litigation if Judge Robart’s order remained in effect for now.

President Trump’s central argument is that his executive order must remain in effect to prevent terrorist attacks – not just in the long term, after the suspensions are over and “extreme vetting” has been implemented, but in the short term, during the suspension periods. The court made short work of that argument: “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.”

By contrast, the court observed the obvious fact that people denied entry or re-entry into the United States would suffer considerable harm if the executive order went into effect pending further litigation.

The Trump administration’s last-ditch argument was that Judge Robart’s order was “overbroad,” meaning that it extended beyond the scope of people with constitutionally protected rights. The court’s response was that it is the president’s job, not the court’s, to rewrite the executive order. Given the extensive news coverage of the chaos the executive order caused before judges were called in, the court didn’t need to point out that if President Trump had competently vetted the executive order instead of rushing it out the door, it might not need to be rewritten to avoid the obvious constitutional pitfalls.

Today, in the euphoria of Trump’s decisive political defeat at the hands of the forces of compassion, constitutional order, and common sense, it’s important to remember that the fight is not over – not the fight over Muslim immigration, much less the much greater fight between Trump’s authoritarianism and the forces that won in court yesterday.

President Trump has several options, appeal to the Supreme Court being the one foremost on pundits’ minds. I personally think President Trump would be unwise to go to the Supreme Court at this stage – but then, I’ve made it clear that I regard the drafting and implementation of the executive order itself to have been unwise. Wisdom is not the watchword of this administration.

Commentators assume that the Supreme Court would divide evenly between the four liberals and the four conservatives. Since a tie vote leaves the lower court order in place, the Trump administration needs five votes to get an emergency stay. I also think it’s at least a 50-50 proposition that Justice Anthony Kennedy, Chief Justice John Roberts, or both, would side with the four liberals against an emergency stay.

Trump could try to time his appeal to the Court so that his pending nominee, Neil Gorsuch, is seated in time to vote on the request for a stay. But I don’t think that’s going to happen. Gorsuch’s nomination is likely to be filibustered, and although I think Republicans will eventually change the filibuster rules to get Gorsuch confirmed, I don’t think they’re eager to do it, and therefore they will try to fight through a filibuster before exercising the nuclear option.

Legally, Trump has plenty of time to go to the Supreme Court. But practically, his time to ask the Court for an emergency stay is probably days, maybe a week. That’s because there is a very well established doctrine holding in substance that a party who asks a court to treat a situation as an emergency must himself act like the situation is an emergency. You can’t sit around thinking about it for a month or two then show up in court asking the court to drop everything and issue an emergency order right now.

Next, President Trump could do what he should have done in the first place – vet the executive order with the departments of State, Defense and Homeland Security, and most importantly with the Attorney General, and listen to their advice. It should not be all that difficult to come up with an executive order that satisfies Trump’s political base with an anti-immigrant gesture, without taking on a host of legal questions about the order’s validity.

And let’s be clear: the executive order was an anti-immigrant move, not a national security move, and not a move to “secure our borders.” The executive order was directed solely at legal immigrants – those with refugee entry approvals or visas. These are the folks who did what Trump fans say illegal immigrants should have done: get in line and wait your turn.

One of the unchallenged sections of the order reduces the American commitment to take in up to 100,000 refugees annually to no more than 50,000. Given that the executive order was supposed to suspend all refugee admissions until “extreme vetting” is in place, the reduction in the refugee cap is not an anti-terrorist measure, but an anti-refugee measure – and, of course, the idea was that Christian minorities in Muslim countries would have preference for that smaller number of refugee spots. (I’m quite sure that Trump does not have in mind admitting Sunnis facing religious persecution in majority Shiite Iraq or Iran, or Shiites facing religious persecution in majority Sunni Pakistan or Saudi Arabia. And one of the more irrational aspects of the executive order is its stipulation that priority be given to religious persecution claims asserted by members of religious minorities. In Syria, where the Shiite minority rules brutally over its Sunni majority, or in Bahrain, where the Sunni minority suppresses its Shiite majority, the victims are left out in the cold because they are in the numerical majority, subject to dictatorships of minorities.)

Revising the executive order would be the best move, if the object were to implement actual policy changes. The problem is that revising the executive order would look like conceding or at least compromising, not winning outright – and the core element of Trump’s brand is his claim to be a “winner.” And in any event I question whether the primary objective is policy change, as opposed to signaling to Trump’s base his continuing hostility to people who are not white and Christian.

Finally, Trump could engage in the long-term litigation of the merits of the states’ lawsuits, and the other lawsuits that have been filed. The Court of Appeals noted several times that the administration had submitted no evidence on various important points. The administration could go about developing such evidence – the most obvious being to submit evidence of terrorist attacks, or intention to commit terrorist attacks, by nationals of the seven countries. Most compelling, of course, would be a terrorist attack, or even just a serious crime, committed by someone admitted to the U.S. because of Judge Robart’s order.

Opponents of Trump’s executive order, and of his nativist authoritarianism generally, have to be realistic and understand that yesterday’s decision is just one battle in a very long fight, and a lot of these battles will be lost. Trump will not end immigration, legal or illegal, but he will reduce both. He won’t get his entire wall – the price tag has gone up, again, this time to $21 billion – but he will get additional border patrol agents, increased detention at the borders and increased deportation from within the borders. He won’t get his entire executive order, but he will get parts of it – reducing refugee immigration by lowering the annual cap and decreasing visa-based entries by drawing out the vetting of visa applicants. Trump will likely end Obama’s leniency programs, DAPA and DACA (Deferred Action for Parents of Americans and Deferred Action for Childhood Arrivals).

Still, yesterday was a great day. No matter the long-term result of the litigation, yesterday’s appellate decision was a sobering reminder that we elect presidents, not kings, and that even if the Republicans who control Congress are willing to forfeit the co-equal status of their branch of government, the judicial branch is not willing to forfeit its co-equal status. Yesterday’s decision tells the majority of Americans, who oppose Trump, that resistance is not futile.


  1. Otto von Dehn permalink

    I just wanted to say thank you. Your comments and analysis are always beautifully concise and well written and I have always come away with some kind of insight.


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