Preface: This is not about the merits or demerits of Executive Order 13769 (the “Travel Ban”). I am not taking a position here on it being right or wrong. This is about the courts – the system and the process. My personal, relatively well-informed opinion is that whatever position you take on the travel ban, the process by which the executive order is being scrutinized should be encouraging for all of us.
I’ll begin with my admission of ignorance. I am no legal scholar. This is simply my foray into trying to understand the issues involved in the order and the process of judicial review regarding that order. Although I consider myself fairly skilled at digesting lots of material and distilling it into a more understandable form, I always suggest that people go to the source. So if reading through a 29 page court opinion gets you excited (And why shouldn’t it?), then you can read US Court of Appeals recent decision HERE.
First, a quick recap. The President issues an executive order. The state of Washington file suit claiming that sections of the order cause an undue burden on the state, and that they are unconstitutional. A US District Court decides in favor of Washington, and issues an order barring the enforcement of those sections of the order. The executive branch then files a request for an emergency stay on the district court’s order, which would allow enforcement to continue. The US Court of Appeals for the 9th Circuit hears the arguments and rejects the Executive’s request. There, all caught up.
There’s a lot to this ruling, so let me put those aforementioned skills of digestion and distillation to work. The judges on the appeals court had to make their decision partly on the basis of whether or not the appellants’ (the Executive) arguments were likely to succeed. So, at the heart of the matter is why the appellate judges saw those arguments as insufficient.
I have outlined the arguments made by the Executive (referred to as “the Government” in the opinion), and with each argument I have included what seemed to me the most important passages which reveal the court’s reasoning for or against that argument. I have also listed the most relevant cases cited as precedents for the Appeals Court’s ruling.
Argument #1 – The states have no legal standing in this case
“To establish Article III standing, a plaintiff must demonstrate ‘that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.’” (p. 9)
“The States argue that the Executive Order causes a concrete and particularized injury to their public universities…. Specifically, 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. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.” (p.9-10)
“Under the ‘third party standing’ doctrine, … as the operators of state universities, the States may assert not only their own rights… but may also assert the rights of their students and faculty members. We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order,” and “We therefore hold that the States have standing.” (p. 10-13)
Relevant cases cited for precedent:
Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986)
Singleton v. Wulff, 428 U.S. 106, 114-16 (1976)
Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976)
Argument #2 – Executive orders on immigration and national security are unreviewable, i.e. the courts have no authority to question the Executive’s actions regarding national security
The court acknowledges the precedent for showing deference to the political branches (Executive and Legislative) regarding immigration issues. Yet, as the opinion points out, the Executive was not arguing for deference. As the court puts it, “The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches…. Instead, the Government has taken the position that the President’s decisions about immigration policy… are unreviewable, even if those actions potentially contravene constitutional rights and protections.” (p.13)
“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.’” (p.17-18)
Most relevant cases cited for precedent:
Boumediene v. Bush, 553 U.S. 723, 765 (2008)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
INS v. Chadha, 462 U.S. 919, 943 (1983)
Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012)
Aptheker v. Sec’y of State, 378 U.S. 500 (1964)
Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)
Argument #3 – Non-citizens do not have due process rights, and even if they did the White House counsel issued guidance that the Executive Order does not apply to lawful permanent residents.
The court points out that previous Supreme Court cases clearly acknowledge that “the procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘appl[y] to all ‘persons’ within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.’” (p.20-21)
The court also dismissed the argument that the executive order would not be applied to lawful permanent residents based on the White House counsel’s assurance. “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President…, and that proposition seems unlikely…. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” (p.21) And “in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” (p.22)
Most relevant cases cited for precedent:
Zadvydas v. Davis, 533 U.S. 678, 693 (2001)
Landon v. Plasencia, 459 U.S. 21, 33-34 (1982)
Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963)
It appears to me that the court’s decision here was a sound one. First, the executive was not making an argument that the courts should defer to the legislative and the executive branches regarding matters of national security; they were arguing the the courts had no constitutional power to even review the actions of the Executive. That flies in the face of 214 years of legal history in this country, and if accepted would essentially nullify the entire doctrine of judicial review started with Marbury v. Madison, 5 U.S. 137 (1803). It seems to me that the court had no alternative but to reject that argument. Had they accepted that claim, it would have set a dangerous precedent, and one that should not be taken lightly. Lawyers can argue all they want about the Constitutionality of the executive order. That will, and should happen. But to simply say the no one gets to even question its Constitutionality is unthinkable. Without the right to review and hold the President or Congress’s actions accountable to the Constitution, Constitutional rights themselves become subject to political whims and personal ideologies. They cease being rights, because they can be voted away in a legislature or signed away anytime the President declares a threat to national security – no matter how vaguely defined or ambiguous that “threat” is. The premise of the Executive’s argument in this case would essentially eliminate Constitutional accountability for the Executive and Legislative branches. I’m no legal scholar, but that seems entirely un-American.
Second, the appellate court was basing its reasoning off of Supreme Court precedent, quoting exact passages from cases that directly refuted what the Executive’s lawyers were arguing. Since the appellate court cannot overturn the high court, it was bound to reject those arguments that seemed to be contrary to the Supreme Court’s rulings in previous cases. The Supreme Court can overturn, clarify, or revise its own decisions, though, and it may well be that the case ultimately ends in favor of upholding the President’s executive order. That, however, does not mean that the judges on the 9th Circuit Court of Appeals were acting in bad faith or being “activist judges” (whatever that’s suppose to mean) when they issued their ruling. While certainly not perfect, it seems that the judicial process – Constitutional review based on evidence and precedent – is working. That is a good thing – for all of us.