The Limits of Deference

Today, the American Civil Liberties Union filed a lawsuit against the Trump administration in an effort to challenge the now-officially-ordered ban on the recruitment of transgender soldiers into the American military. The suit is grounded in the Equal Protection Clause of the 14th Amendment, claiming that “the ban is unconstitutional because it discriminates against transgender people and treats them unequally.” While there is much to say about the legal merits of the case, I’ll leave those arguments to people with more expertise than I in such matters. However, the case is interesting to me because it, along with several other lawsuits already in progress, might help us determine the limits of executive authority and judicial deference to the president.

Judicial deference is the practice in which courts are reluctant to issue rulings in areas for which legal findings aren’t well suited or might not appropriately overrule policy decisions. In US constitutional law, this often occurs in the realm of foreign policy and national security law, areas in which the courts often lack expertise and in which the urgency and the needs for security and secrecy are often understood to trump narrow legal rulings. Famous examples include the unwillingness of the courts to reach decisions that could, even by inference, imply recognition of Taiwan as a state or the interpretation of rules concerning the procedures by which one applies for asylum. Perhaps the most infamous and important instance of deference occurred during World War II when the Supreme Court refused to overturn the Executive Order interning Japanese-Americans. Deference is not absolute and there are times when the courts most definitely do not defer to the president, and the ACLU’s suit touches on one such time. Courts generally do not defer to the president on the meaning of the Constitution, but as Korematsu demonstrates, when the Constitution butts up against a presidential claim of national security, all bets are off.

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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.

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