|This cartoon decorated a post in 2012|
worrying about Obama's overreach
and it'll serve here.
The order is widely seen as fulfilling a campaign promise by candidate Trump to ban all Muslims from entering the country "until our country's representatives can figure out what's going on." Rudy Giuliani has bragged about his role in drafting this order in a way that would pass constitutional scrutiny. So far the score is Constitution 2--Giuliani 0.
A week ago, judge James Robart in Seattle placed a nationwide halt on the Executive Order pending a hearing on the merits. In response, President Trump called Robart a "so called judge," ridiculed his abilities, and accused him of making a political decision. But this is no political decision. Indeed, Judge Robart was appointed by a Republican president (George W. Bush, 2004). Yesterday Judge Robart's halt on enforcement was upheld in a temperate and well reasoned decision by the Court of Appeals in San Francisco.
The Trump administration has made the remarkable claim that the president's authority over who enters the country, when motivated by national security concerns, is absolute and not reviewable by the courts. The Court of Appeals was direct and clear in its rejection of this claim yesterday. That's not "political," that's fundamental to our form of government.
Here are the three justices on the appellate panel in the Ninth Circuit in their per curiam (unanimous) decision:
[T]he 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 Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionallypermissible means of implementing that power”). Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995) . . . .
. . . Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict. See, e.g., Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal courts of jurisdiction over habeas petitions filed by non-citizens being held as “enemy combatants” after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001); Aptheker v. Sec’y of State, 378 U.S. 500 (1964) (holding unconstitutional a statute denying passports to American members of the Communist Party despite national security concerns); Ex parte Endo, 323 U.S. 283 (1944) (holding unconstitutional the detention of a law-abiding and loyal American of Japanese ancestry during World War II and affirming federal court jurisdiction over habeas petitions by such individuals). As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (plurality opinion).
In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.And once we allow a role for the courts to review executive action that infringes on liberty, the question is what are the factual premises for such an action, and what are the constitutional standards?
5th Amendment Due Process
The Constitution provides a right of due process to all persons present in the United States, whether they are citizens, non-citizens, here legally or illegally, here temporarily or permanently. Due process requires that before the liberty interest of any person may be infringed, there must be notice and an opportunity to respond and be heard, and the government must have some rational and proper basis to infringe on liberty.
The order infringes on several constitutional liberty interests: the ability to travel, to leave and return, the ability of citizens and permanent residents to have family and friends visit from other countries, the ability of universities to admit students, and hire professors. Trump's Executive Order failed to provide notice and an opportunity to be heard on these infringements, and the government has failed to demonstrate a rational and proper basis for its order.
Here is the Court of Appeals again:
"The Government has not shown that a stay is necessary to avoid irreparable injury. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. 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. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.
"Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.
"In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that."As Will Baude notes at Volokh ("The Ninth Circuit and the Evidence Gap"), this lack of a rational basis is likely to be a recurrent theme in court review of Trump actions.
1st Amendment Establishment Clause; Equal Protection Clause
The Executive Order also seeks to restructure our refugee program by prioritizing the admission of Christians over Muslims from the Middle East. "We're going to help them," said President Trump, referring to Syrian Christians. The First Amendment, however, prohibits any law "respecting an establishment of religion." A law that has a religious and not a secular purpose violates this law; and a law that discriminates among groups of people based on religion violates the Equal Protection clause. This is not "political;" this is fundamental to our system of government.
As I have pointed out previously, the United States is also signatory to the United Nations convention on refugees which states that refugees must be accepted without discrimination based on race, ethnicity, or country of origin.
"We'll see you in court!" said President Trump when he learned of the Ninth Circuit's order yesterday.
So far so good.
For further reading see:
Ilya Somin at Volokh Conspiracy.
Martha Minnow and Robert Post at Balkanization
Jonathan Hafez at Balkanization
Follow me on Twitter @RolandNikles