Thy Liberty in Law …

This evening a three judge panel of the Ninth Circuit Court of Appeals unanimously rejected the government’s attempt to deep six so-called Judge Robart’s temporary restraining order forbidding enforcement of Trump’s executive order on immigration.

In their 29 page, closely reasoned opinion, the judges sound as if they are fully conscious of their place in American history. The opinion has the air of a stone cold sober person speaking through clinched teeth on a very important occasion.

I summarize below the points that will be of most interest to persons who have not had the misfortune to attend law school.

The nub of the matter, of course, is that the government was seeking “emergency” relief, but its recipe for success lacked a key ingredient: an emergency. (Reminds me of the time many years ago when Dr. Aardvark set out to prepare an evening meal for our dinner guests, chicken tarragon, only to realize that we were missing something. I think you can guess the name of the missing ingredient.)

Having no evidence whatsoever that vetting procedures were deficient or that terrorists are pouring over the border, the government had to resort to the extreme position that assertion could substitute for evidence—and that the court lacks power to review the president’s decision.

The court clearly grasped, and firmly rejected, the government’s argument. They did not nibble the bullet; rather they bit down hard.

The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. ,,,

Instead, 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. ,,,

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. …

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.

After a fairly detailed look at the case law on point, the court concluded,

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.

Having established this fundamental point, the court then turned to its task of predicting which side is ultimately likely to win, after trial and appeal. Among other things, the opinion

  • Concluded that the executive order adversely affects the interests of large numbers of people with due process rights under the U.S. Constitution (although it also adversely affects many foreigners with no such rights)
  • Rejected the government’s fallback position that, at a minimum, the scope of the order should be cut back, and
  • Strongly indicated that it’s appropriate to consider the Trumpster’s many anti-Muslim statements in deciding whether the executive order is based on unconstitutional religious discrimination

Finally, the court pointed to a gaping hole in the government’s “emergency” motion: the failure to provide any evidence at all of an emergency, other than the emergency of Trump’s own creation. Instead, as the court said, the government only asserted an imminent threat of entry by terrorists, and then asserted that its unsupported assertion is not subject to judicial review.

That dog won’t hunt.