A Few Thoughts on the 9th Circuit’s Decision

A few thoughts on yesterday’s decision from the 9th Circuit Court of Appeals in State of Washington v Trump:

  • Just so everyone is clear (I’ve seen some mischaracterizations of what happened), the court did not strike down the executive order suspending immigration from seven Muslim countries for 90 days and refugees for 120 days and barring all refugees from Syria indefinitely. Rather, the court declined to lift the suspension imposed by federal judge James Robart.
  • The court did not find that the administration does not have the power to suspend visas to countries deemed by the president to present significant national security threats.
  • The court did find that states can get standing to sue over immigration restrictions. Standing–the right to claim injury in order to be allowed to bring suit–is notoriously difficult to “get” in national security cases.However, the court found that:

the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.

This is big. Any future executive orders addressing immigration will be able to be challenged by state universities which enroll students from the affected countries.

  • The court rejected claims of unreviewable power on the part of the president due to national security concerns. While I have long been an advocate of expansive presidential war powers, my basic argument also draws a clear distinction between war powers during time of declared war and time of conflict without a declaration of war. In the latter, the president’s powers are expanded but not at their most expansive and it is reasonable for the courts to exercise review of the legality and constitutionality of presidential actions, even those purporting to be necessary to protect the country. The court clearly found that it has the authority to review the order citing the Boumediene case, in which the Supreme Court found that internees at Guantanamo Bay had the right to pursue writs of habeas corpus despite a congressional law attempting to deny that right.
  • Notably, the Trump administration offered no justification for its claimed need to suspend entry of immigrants, even those with already-issued visas. The court ruled that:

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.

 This is also big. The court is asserting that there has to be some rational basis to uphold a claim based on national security. This is, if the Supreme Court chooses to review this judgment, the mostly likely ground for overturning the decision and reinstating the executive order. But, given the lack of a declared war and the concerns over due process and religious discrimination discussed below, I think this is a reasonable claim.
  • The court found the executive order problematic on two fronts: Absence of due process and potential religious discrimination.On due process
    • The State of Washington argued that the order violated due process in three ways:

First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second,section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in traveling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.

This is pretty clear. The executive order was drafted without proper vetting that would have noted these problems. Absent a declaration of war, it is improper to bar lawful permanent residents or holders of valid visas entry to the country without some kind of hearing or administrative process. To be clear, I’m not arguing it WOULD be proper to do so with a declaration of war (although my theory of war powers makes that likely).

  • On religious discrimination, the court reserved judgment on the matter, but did not the public pronouncements of the president, his administration, and his partners like Rudy Giuliani, referring to the order as a “Muslim ban”(see here and here for examples). Critics of the president’s tweeting predilection have long argued that as president, everything Trump says matters and thus he should not “speak” so rashly. Now that his own tweets have been used against him to sustain the suspension of one of his signature initiatives, maybe he’ll ease up on social media?
  • It was the combination of things–the absence of due process and the potential violation of the 1st Amendment–that raised the bar for the administration and led the court to, in essence, demand the president to prove his claims of national security need. If the order had been written more carefully so as to, for example, allow for a hearing process or only applied to non-visa holders, it likely would have been reinstated.

Of course, this is far from over. The Supreme Court could choose to review the appeals court decision, but given the 4-4 split, that will be a hard row for the administration to hoe. Could they swing Breyer to overturn the suspension? Hard to imagine, but if it happens, my money is on the requirement for the president to present evidence justifying his claims of national security need.

What seems more likely, to me, is that President Trump is not likely to spend the requisite years fighting in the courts. Rather, I expect to see this extant order lifted and this decision used a blueprint for how to implement a better, legal limit on immigration.

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