Day: March 16, 2017

When Judges Revolt

When discussing the travel ban, it is vey important not to lose the forest for the trees. I have blogged at some length about the statutory nuances of the INA, the applicability of the Establishment Clause to immigration laws, and what sorts of due process rights non-resident aliens have. But there is something very, very significant going on. I addressed it in the concluding portions of my Politico piece:

A common trope among the chattering class is that our polity must resist “normalizing” Trump as president. Courts should not take the bait. When judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors. For example, when Justice Ruth Bader Ginsburg suddenly skips Trump’s joint address—whom she inappropriately criticized—after years of giving President Barack Obama warm hugs, it sends a signal. Such behavior is par for the course on cable news, but should not infest the judiciary. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such.

Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). It is insane to think that the president’s signature policy so far—on which he campaigned and was elected to the highest office in the land—ostensibly boils down to how Giuliani framed an impromptu answer on cable news. I don’t think it does. Consider a counterfactual where Giuliani skipped Fox that day. Would the policy now be ruled constitutional? I suspect the courts would still have struck down the orders, meaning Giuliani’s statement is “mere surplusage”—an irrelevant distraction that carries no legal weight. What matters to these judges is Trump, and Trump alone.

Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference). It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.

Or as I explained on NPR today:

BLACKMAN: Trump has been egregious towards the courts. He has been very critical of them. And he’s made comments about their race, ethnicity that are beyond the pale. But I’m troubled of the courts replying in kind. Even if Trump is disrupting all political norms, I am not comfortable that the courts are disrupting judicial norms.

Judges in Washington, Maryland, and Hawaii are signaling that they are not going to treat President Trump as if he were any other President. The sorts of analyses we’ve seen are absolutely insane under long-standing law.

But maybe I am wrong to assume precedent applies to Trump. In a must-read post, Ben Wittes and Quinta Jurecic assert that because courts think Trump is unable to follow his oath of office, the usual rules do not apply to him. We are witnessing, they note, a “revolt of the judges.”

To put the matter bluntly: why are so many judges being so aggressive here? The legal disputes are both interesting and important. But this meta-legal question strikes us, at least, as far more important and far-reaching. And we think the answer lies in judicial suspicion of Trump’s oath. The question goes to the manner in which we can expect the judiciary to interact with President Trump on this and other issues throughout his presidency. It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.

The authors acknowledge that my arguments about the Establishment Clause may be correct under current law, but none of that may matter here:

But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?

Descriptively, I think the authors are right on point. Whether these judges realize it or not–motivated reasoning is a powerful force–they are not treating Trump like a normal President.

The authors explain that my approach, like that of Judge Bybee, is that of a “traditional judicial posture.” (I will gladly assume that mantle). Will the higher-ups agree with us, or will the revolting judges prevail?

The other question is whether the higher courts—including, ultimately, a majority of the Supreme Court—will share Brinkema’s sensibility or Blackman’s on the matter. There is no doubt that Blackman’s and Bybee’s approach represents the traditional judicial posture. It is a posture in which the judiciary has certain institutional obligations to the executive branch; in which those obligations exist independent of the person who embodies the executive branch at any given moment in time; in which the deference and respect owed the president exist largely in abstraction from the President’s fidelity to his oath or to the Take Care clause; in which that fidelity is non-judiciable in any event; and in which presidential misconduct does not warrant judicial action outside of the agreed-upon judicial function.

Tragically, I suspect my view will not prevail.

A fellow traveler of the “traditional judicial posture” is Judge Bill Pryor of the 11th Circuit. His commentary in the Virginia Law Review is worth reading over and over again.

For those who are concerned about judicial independence, history suggests that judges have an opportunity to do something about it, besides complain. It is not too much for us to look in the mirror and ask whether some criticisms are fair. As Justice Harlan explained in his famous dissent in Plessy, “[T]he courts best discharge their duty by executing the will of the law-making power, constitutionally ex- pressed, leaving the results of legislation to be dealt with by the people through their representatives.” Perhaps, even today, we sometimes fail in that limited and critical duty. Alexander Hamilton explained in The Federalist No. 78 that judges exercise “neither FORCE nor WILL but merely judgment.” Hamilton’s point was that we must depend on the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.

And for good measure, fast-forward to 6:35 with my interview on Lou Dobbs tonight. I make a very similar point.

Judges don’t exist in vacuums. They, as Alexander Hamilton said, have neither the power of the sword or the power of the purse. The validity their judgments depend on their legitimacy. And, when courts betray the legitimacy with these sorts of decisions, they become less reliable as an institution. So there is a distinct cost when judges go out on a limb like this, and treat Trump differently then they would treat any other President, because who Donald Trumps is.

This demise of judicial neutrality is truly regrettable. Our Constitution already has a safety valve in the case of a crazy President: the 25th Amendment. Courts should not twist and turn established law as a form of self-help. As I wrote in Politico, “The judiciary should not abandon its traditional role simply because the president has abandoned his.”

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Maryland District Court’s Statutory Analysis in International Refugee Assistance Project v. Trump

The district court in Maryland should be commended for actually engaging with the Immigration and Nationality Act. Alas, its analysis in International Refugee Assistance Project v. Trump is incomplete.

To begin, the court cites a D.C. Circuit Decision from 1995 to establish that the parties have standing.

The United States Court of Appeals for the District of Columbia Circuit has found that U.S. citizens and residents have standing to challenge the denial of visas to individuals in whose entry to the United States they have an interest. See Abourezk, 785 F.2d at 1050 (finding that U.S. citizens and residents had standing to challenge the denial of visas to foreigners whom they had invited to “attend meetings or address audiences” in the United States); Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469, 471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). In Legal Assistance, the court specifically held that U.S. resident sponsors had standing to assert that the State Department’s failure to process visa applications of Vietnamese citizens in Hong Kong violated the provision at issue here, 8 U.S.C. S1152. Id. at 471. The court articulated the cognizable injury to the plaintiffs as the prolonged “separation of immediate family members” resulting from the State Department’s inaction. Id.

The court notes that it was “vacated on other grounds,” but those other grounds are really, really relevant to the Trump executive order. For reasons I discuss here, Congress responded to the 1995 decision by amending the Immigration and Nationality Act.  Specifically, it added subparagraph (B) to Section 1152(a)(1), an anti-discrimination provision that has been on the books since 1965.

(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

Peter Marguiles offers more background:

The Maryland court interpreted the INA provision in a parched and parsimonious fashion wholly contrary to its text and purpose. The provision at issue gives the Secretary of State latitude in determining “procedures for the processing of immigrant visa applications” and the suitable venues for visa processing. Congress passed this provision in 1996 (see Josh Blackman’s post here) to override a 1995 D.C. Circuit decision that struck down a State Department policy barring the filing of Vietnamese asylum applications in Hong Kong.

The State Department had made the change after it concluded that the Hong Kong venue was encouraging unmanageable migration patterns and frivolous asylum claims. The 1995 D.C. Circuit decision held that the venue change had violated 8 U.S.C. 1152(a)(1)(A), which bars discrimination in the issuance of immigrant visas. The State Department measure clearly singled out Vietnamese asylum applicants for more rigorous procedures, which almost certainly resulted in a greater risk of repatriation to Vietnam but also encouraged manageable migration and promoted orderly asylum adjudication. In response to the D.C. Circuit’s ruling, Congress in 1996 enacted subsection (B), which gave the State Department flexibility in visa processing to counter courts’ unduly broad readings of subsection (A). The Supreme Court then remanded the case to the D.C. Circuit, which upheld the venue change as a processing decision that Congress had delegated to the executive branch.  See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349 (D.C. Cir. 1997).

The Maryland court’s statutory interpretation analysis focuses almost exclusively on subparagraph (a) and how it interacts with Section 1182(f). Specifically, it recognizes that 1182(f) concerns entry while 1152(a) concerns visa issuance.

Accordingly, an executive order barring entry to the United States based on nationality pursuant to the President’s authority under S 1I82(f) does not appear to run afoul of the provision in S 1I52(a) barring discrimination in the issuance of immigrant visas. . . .  Under the plain language of the statute, the barring of immigrant visas on that basis would run contrary to S1I52(a). Just as S 1I52(a) does not intrude upon the President’s S 1I82(f) authority to bar entry to the United States, the converse is also true: the S 1182(f) authority to bar entry does not extend to the issuance of immigrant visas.

This conclusion, which echoes my position from the outset, conflicts with other scholars who have maintained that entry and visas are a bundled whole.

The second executive order, unlike the first, expressly countenances the denial of visas.

Although the Second Executive Order does not explicitly bar citizens of the Designated Countries from receiving a visa, the Government acknowledged at oral argument that as a result of the Second Executive Order, any individual not deemed to fall within one of the exempt categories, or to be eligible for a waiver, will be denied a visa. Thus, although the Second Executive Order speaks only of barring entry, it would have the specific effect of halting the issuance of visas to nationals of the Designated Countries.

As a result, 1152 is implicated. The court relies on the canon that the specific controls the general, and thus any conflict between 1152(a) and 1182(f), the former controls.

I have no problem with that principle of statutory interpretation. Where I part company with the court, is on whether 1152(a) is actually being violated, which turns on the construction of subparagraph (B). The court writes:

The Government further argues that the President may nevertheless engage in discrimination on the basis of nationality in the issuance of immigrant visas based on 8 U.S.C. s 1152(a)(1)(B), which states that “[n]othing in [s 1152(a)] shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” As that statutory provision expressly applies to the Secretary of State, it does not provide a basis to uphold an otherwise discriminatory action by the President in an Executive Order. Even if the Court were to construe Plaintiffs’ claim to be that the State Department’s anticipated denial of immigrant visas based on nationality for a period of 90 days would run contrary to S 1152(a), the text of S 1152(a)(l)(B) does not comfortably establish that such a delay falls within this exception. Although S1152(a)(l)(B) specifically allows the Secretary to vary “locations” and “procedures” without running afoul of the non-discrimination provision, it does not include within the exception any authority to make temporal adjustments. Because time, place, and manner are different concepts, and S1152(a)(l)(B) addresses only place and manner, the Court cannot readily conclude that S1152(a)(l)(B) permits the imminent 90-day ban on immigrant visas based on nationality despite its apparent violation of the non-discrimination provision of S 1152(a)(1)(A).

Here, the court advances two new arguments that I’ve not seen elsewhere–even from scholars who disagree with me on the statutory framework.

First, the court finds that because the provision is addressed to the “Secretary of State,” and not the President, it “does not provide a basis to uphold an otherwise discriminatory action by the President in an Executive Order.” This argument is perplexing. The President’s order told the Secretary of State to implement a new policy. The Secretary of State will implement that policy. This argument fails to account for the fact that the Secretary of State at all times serves as the President’s pleasure. Anything the Secretary does is under the direction, if not the order, of the President. I don’t think the court actually buys this argument, because in the next sentence it introduces the real argument distinction: subparagraph (b) does not authorize a 90 day pause.

This argument is certainly new. As euphonic as time-place-manner is to my constitutional ear, I’m afraid it doesn’t hold water. Why on earth must Congress in an immigration separate time, place, and manner into separate elements? Even in constitutional law, the place and manner prongs often collide. There is absolutely nothing in the text or history of the statute suggesting that “procedures” should be so narrowly confined. This is a broad, broad, power, that embraces the power of the government to decide to readjust the process, and put a temporary pause on adjudications. The capaciousness with which the court considers statements made by the President to ascertain purpose stands in stark contrast with the court’s miserly approach to statutory interpretation in an area where the President has wide-ranging authority.

Peter Margulies adds:

Instead of viewing 8 U.S.C. 1152(a)(1)(B) as a limit on judicial intrusion into visa processing, the Maryland court read the statute in a strained fashion that failed to heed its text or purpose. The court viewed subsection (B) as not permitting “temporal adjustments” to visa processing, such as the pauses required under the revised EO. According to the court, subsection (B) allowed executive modification of visa processing “place and manner,” but not “time.” This limit is painfully artificial. Courts routinely view incidental restrictions on time, place, and manner as appropriate in other contexts, including free speech. The authority to speed up or slow down visa processing is an integral part of decisions on visas. Country conditions, such as the intensity of an armed conflict within a state’s territory, can and frequently do slow down visa processing, as the government noted to the Supreme Court in the Vietnamese Asylum case. To be sure, a permanent and pronounced slowdown in visa processing could be tantamount to a visa denial, thus triggering concerns about discrimination barred by subsection (B)’s statutory companion, subsection (A). However, a relatively brief pause in visa grants does not rise to that level.

For further support of my reading, listen to stalwart Deputy SG Edwin S. Kneedler explain the issue to Justice O’Connor back in 1996, with repeated references to “procedures” that countenance wide-ranging classifications based on nationality (13:50).

Alas, DOJ did itself no favors, and devoted only one sentence to subparagraph (b) in its brief:

Even where Section 1152(a)(1)(A) applies, moreover, Congress made clear that it does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications,” id. § 1152(a)(1)(B), which at most is all the Order’s temporary pause does.

For reasons I don’t fully understand, the United States did not push the subparagraph (b) argument further. During Chad Readler’s colloquy with Judge Robart, starting around 30:00, he does not mention subparagraph (b).

On appeal, the government should focus much more on subparagraph (b). If the government wins on subparagraph (b), the government wins the statutory case, regardless of what the canons of construction dictate. Solicitor General Days’s brief (p. 17) in Vietnamese Asylum Seekers is directly on point.

In any event, Section 1152 only applies to immigrant visas. Refugees and other aliens do not enter on immigrant visas, so this issue is not conclusive.

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Federal Court Enjoined the Agricultural Adjustment Acts Because Secretary Wickard’s Radio Address Misled Farmers

The current issue of the Journal of Supreme Court History has a fascinating article about the origin of Wickard v. FilburnFilburn v. Helke was decided by a divided three-judge panel in the Southern District of Ohio on March 14, 1942. District Judge John H. Druffel, joined by Judge Nevin ruled for Roscoe Filburn, but not on Commerce Clause grounds. Rather the opinion was based on the “equities of the case.” The article explains:

He concluded that, due to the representations made by Secretary of Agriculture Wickard in his May 19 radio address, some of those who voted in favor of the measure might have been induced to vote against their interests, and consequently the Act, as amended, was void as applied against those misled farmers. In other words, the requisite two-thirds vote would not have voted in the affirmative but for the Secretary’s unintentionally misleading statements, and thus the increased penalty of forty-nine cents per bushel could not be enforced against Filburn. The judge opined that “it would seem that the equities of the situation demanded that the Secretary forewarn the farmers that in accepting the benefits of increased parity loans they were also subjecting themselves to higher penalties.”46 The court enjoined the county committee from collecting the penalty over and above the original fifteen cents per bushel, from placing a lien on Filburn’s entire crop, and from collecting the penalty unless and until the excess crop was actually marketed, in accordance with the terms of the original Act.

When I read this, I thought to myself, Huh!? The an executive policy was put on hold because of statements a government official made on the radio?! In 1942!

Under the insane procedures of the AAA, 2/3 of the eligible wheat farmers had to vote in a national referendum to approve the marketing quotas, which would also approve loans for wheat growers. Secretary of Commerce Claude Wickard’s speech, which the court transcribes, warned that “we have a record amount of old wheat on hand and a bumper crop in prospect” and that “Farmers should not be penalized because they have provided insurance against shortages of food.” Here is the crux of the pitch:

‘The law provides that wheat loans will not be made if wheat growers vote down marketing quotas. * * * The continuance— or discontinuance— of government loans on wheat is at stake in this referendum on May 31. To put it bluntly, no quotas, no loans.

81% of the 559,630 voting wheat-growers approved the quotas, and 19% opposed them. The quotas were approved. Asa a result, producers were “subject to a penalty on the farm marketing excess.”

The question for the Court was not whether the AAA was valid exercise of Congress’ s commerce powers, but whether the referendum was induced by fraud:

…it becomes important to determine whether or not the necessary two-thirds of the wheat farmers voluntarily voted affirmatively or were unintentionally misled in so voting in the referendum.

It is fully recognized by all that Congress has devoted much time in the past several years in a laudable effort to help the farmers, and as Mr. Wickard said: ‘parity is one of the most important objectives of the national farm programs and will continue to be a goal,‘ and it is but natural that the several hundred thousands of wheat farmers, scattered all over the United States (559,630 voted), should look to the Secretary of Agriculture for advice and direction in a matter of such importance as the quota referendum, and when in his official capacity, the Secretary, in the nation-wide radio speech appealing for an affirmative vote for the quota, eleven days prior to the referendum, said: * * * ‘To make wise decisions, we need to know the facts. * * * Because of the uncertain world situation, we deliberately planted several million extra acres of wheat. * * * Farmers should not be penalized because they have provided insurance against shortages of food,‘ it would seem that the Secretary meant what he said and that the farmers voting affirmatively would not be penalized for the ‘deliberately planted‘ excess acreage beyond the law in effect at the time of planting. But the contrary was true, the bill to which Mr. Wickard referred greatly increased the penalty for the ‘deliberately planted‘ excess acreage and subjected the entire crop to a lien for the payment of the penalty.

Giving full credit to the Secretary for his zeal and his efforts to help the farmer to avoid ruinous wheat prices which he foresaw if the quota referendum failed, yet it would seem that the equities of the situation demanded that the Secretary also forewarn the farmers that in accepting the benefits of increased parity loans they were also subjecting themselves to increased penalties for the farm marketing excess.

In other words, the Secretary failed to adequately warn the farmers that they would be hit with a penalty for growing in excess of the quota. The court acknowledged that these facts were unprecedented:

We have no precedent in point to guide us in a determination of the precise issues raised by the foregoing state of facts.

Yet, the court found that the penalties violated the Due Process of Law because it operated retroactively:

Under the circumstances we are obliged to hold that the amendment of May 26, 1941, 7 U.S.C.A. §§ 1330, 1340, in so far as it increased the penalty for the farm marketing excess over the fifteen cents per bushel prevailing at the time of planting and subjected the entire crop to a lien for the payment thereof, operated retroactively and that it amounts to a taking of plaintiff’s property without due process, and also, or in the alternative, that the equities of the case as shown by the record favor the plaintiff.

As a result, the court found it “unnecessary to pass” on the commerce clause questions.

Circuit Judge Florence Allen, the first female Article III jurist, dissented. Her analysis sounds in Justice Jackson’s ultimate aggregation principle, stating that courts must consider “the total effect of the attempted regulation”:

It is no longer open to question that Congress has the power to protect interstate commerce ‘from interference or injury due to activities which are wholly intrastate.‘ National Labor Relations Board v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 671, 83 L.Ed. 1014. ‘Activities conducted within state lines do not by this fact alone escape the sweep of the Commerce Clause. Interstate commerce may be dependent upon them.‘ United States v. Rock Royal Co-operative, Inc., supra, 307 U.S.at page 569, 59 S.Ct.at page 1011, 83 L.Ed. 1446.
It is true that Congress has no power to regulate intrastate transactions which affect commerce only indirectly. A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947. But where it is claimed that the local activity sought to be regulated does not directly affect commerce, decision should not be made by examination of the effect of isolated individual activity, but must include due regard to the total effect of the attempted regulation. United States v. Darby, 312 U.S. 100, 123, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430.

The stipulation of facts now before us amply supports these legislative findings. It follows that regulation of the supply of wheat that normally moves in interstate or foreign commerce must be upheld as an appropriate means reasonably adapted to the regulation of interstate commerce. Since regulation of the supply of wheat available for sale in interstate commerce but actually used within the state of its origin is drawn into a general plan for the protection of interstate commerce in the commodity from the interferences, burdens and obstructions arising from excessive surplus and the social evils of low values, the power of Congress extends to it as well.

What a fascinating judicial opinion.

Further, the timing on this case was fascinating. Two weeks after the court’s decision, on March 30, the Supreme Court noted probable jurisdiction. The case was argued barely a month later on May 4, 1942.  The Court was unable to agree on a single rationale, and reargued the case on October 13. Justice Jacksons decision was issued on November 9. The constitutionality of the Agricultural Adjustment Act was critical, and the Court moved at light-speed.

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Guest on Lou Dobbs Tonight to Discuss Hawaii v. Trump

This evening I was a guest on Lou Dobbs Tonight on the Fox Business Network. My favorite line of the night was summed up in this tweet from the host:


Also watch till the end for my citation of Hamilton from Federalist No. 78.

 

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The Article II Power to Exclude

At the new Take Care Blog, Leah Litman and Ian Samuel fault me for excluding citations for the proposition that the President has inherent  power to deny aliens entry to the United States.

One gets the sense from Blackman that he believes the President might win even then: He says, without elaboration, that the President’s “inherent Article II authority” permits him to deny entry to the United States to anyone he wishes, even “in the absence of any statute.” (This surprising assertion is bereft, as such brassy claims of presidential power usually are, of citation to the text of Article II; Blackman certainly does not clutter the essay with any reminder that it is Congress that enjoys the power to regulate “commerce with foreign nations,” establish a “uniform rule of naturalization,” and make such further laws as are “necessary and proper for carrying into execution” those powers.)

I sincerely apologize to the authors for omitting a citation to the Supreme Court’s 1950 decision in United States ex rel. Knauff v. Shaughnessy. The case directly addresses the interaction between the Presidents’ inherent authority over admissibility, and Congress’s rules concerning naturalization. In short, the power to excluded is an executive power. When Congress rules in this area, it is implementing an executive power. I erroneously assumed that people reading my post would be aware of this canonical decision.

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp., 299 U. S. 304; Fong Yue Ting v. United States, 149 U. S. 698, 713. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General.

But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e. g., as was done here, for the best interests of the country during a time of national emergency.

In that post, Ian and Leah also refer to my previous statutory argument as “mistaken,” relying on a post Ian wrote about aliens getting stuck in Terminal. I replied to Ian here, noting that his analysis relies on a D.C. Circuit decision vacated by the Supreme Court. Ian did not respond, other than to repeat that I am “mistaken.”

I wish the new blog the best of luck. I’ve long written about the Take Care clause, and whether the President acts in good faith. I’m glad dozens of scholars have now turned their attention to this important topic.

 

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Judge Bybee’s Dissental in Washington v. Trump

While reading Judge Bybee’s dissental in Washington v. Trump, I found myself consistently nodding my head. His analysis is apiece with my numerous writings on the case.

First, Judge Bybee’s first footnote aptly summarizes my views:

Our personal views are of no consequence. I note this only to emphasize that I have written this dissent to defend an important constitutional principle—that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review—and not to defend the administration’s policy

The normal rules of law should not be put on hold when the current commander in chief implements a lawful policy I disagree with, no more than when the previous commander in chief implements an unlawful policy I agree with.

Second, Judge Bybee explained that President Trump’s executive order was premised on the same 1952 statute that was relied on by his five previous predecessors.

Many presidents have invoked the authority of § 1182(f) to bar the entry of broad classes of aliens from identified countries.2

In Executive Order No. 13769, the President exercised the authority granted in § 1182(f). Exec. Order No. 13769 § 3(c) (Jan. 27, 2017), revoked by Exec. Order No. 13780 § 1(i) (Mar. 6, 2017).

In a footnote, he laments that by failing to address the statute, the court did not apply Justice Jackson’s framework from Youngstown:

Regrettably, the panel never once mentioned § 1182(f), nor did it acknowledge that when acting pursuant it to it, the government’s “authority is at its maximum, for it includes all that [the President] possesses in his own right plus all the Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring); see Knauff, 338 U.S. at 542 (“When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.”).

Third, Judge Bybee faults Judge Robart, gently, for issuing a TRO without any reasoned decision.

On February 3, 2017, following a hearing, the district court, without making findings of fact or conclusions of law with respect to the merits of the suit, issued a nationwide TRO against the enforcement of §§ 3(c), 5(a)–(c), (e).

Fourth, Judge Bybee notes that the 9th Circuit panel erred by applying the normal standard of review to this separation-of-powers dispute:

First, the panel held that, although we owe deference to the political branches, we can review the Executive Order for constitutionality under the same standards as we would review challenges to domestic policies.

And its unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.

As I noted in my recent Lawfare post. This inquiry disregards Justice Jackson’s counsel in Youngstown, and ignores the President’s unique role in our separation of powers. With respect to the Establishment Clause, there is no indication that courts have ever applied such constitutional scrutiny to immigration laws, which routinely classify on the basis of religion.

Fifth, the dissental draws an important distinction between Kleindienst v. Mandel:

The panel, however, tossed Mandel aside because it involved only a decision by a consular officer, not the President. See Washington, 847 F.3d at 1162 (“The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather the States are challenging the President’s promulgation of sweeping immigration policy.”). Two responses. First, the panel’s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head. We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision? With a moment’s thought, that principle cannot withstand the gentlest inquiry, and we have said so. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 n.1 (9th Cir. 2008) (“We are unable to distinguish Mandel on the grounds that the exclusionary decision challenged in that case was not a consular visa denial, but rather the Attorney General’s refusal to waive Mandel’s inadmissibility. The holding is plainly stated in terms of the power delegated by Congress to ‘the Executive.’ The Supreme Court said nothing to suggest that the reasoning or outcome would vary according to which executive officer is exercising the Congressionally-delegated power to exclude.”).

I cited the exact same case–Judge Kozinski’s decision in Bustamanta v. Mukasey–for a similar proposition.

Third, does the “bad faith” inquiry focus on the subjective motivations of the Executive branch at large, or is it confined to the individual consular official that acts in “bad faith?” Prior to Washington v. Trump, the courts interpreted Mandel to focus on the latter definition. For example, in Bustamante v. Mukasey, the Ninth Circuit defined bad faith under Mandel in terms of whether consular officer “did not in good faith believe the information he had.” In that case, the plaintiffs alleged that an applicant “never has been a drug trafficker,” as the officer concluded, but they could not demonstrate that the consular officer knew his report was false. “It is not enough to allege that the consular official’s information was incorrect,” the panel held. The “bad faith” analysis is limited to its application by an individual consular officer.

What is most perplexing about the Ninth Circuit’s opinion, which was joined by Judge Clifton, is that Judge Clifton dissented from the panel decision in Din. In that case, he stated succinctly that the “good faith” analysis was limited to the behavior of the “consular official.” (718 F.3d at 869). He said nothing about the subjective motivations of the policy maker. Rather, the denial was “based on law” and “the reason was at least “facially legitimate.” Specifically, Judge Clifton wrote, “The factual basis of the consular’s decision is not within our highly limited review.” In other words, the manner in which the consular official denied the visa, that is “based on law,” is beyond the ken of the courts. The Supreme Court ultimately vindicated his dissent!  It is unclear how Judge Clifton can reconcile his opinion in Din with the per curiam opinion in Washington v. Trump.

My reading is that Section 1152(a) is best confined to the decisions of consular officers. To the extent that it implicates the policy-setter, it concerns–as SG Drew Days told us two decades ago–decisions about “allocation” of visas based on nationality, not screening “procedures.”

Sixth, the dissental reads Justice Kennedy’s concurring opinion in Kerry v. Din a similar fashion as I do:

 Applying Mandel, Justice Kennedy concluded that “the Government satisfied any obligation it might have had to provide Din with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under [8 U.S.C.] § 1182(a)(3)(B).” Id. at 2141. No more was required, and “[b]y requiring the Government to provide more, the [Ninth Circuit] erred in adjudicating Din’s constitutional claims.” Id.

I wrote:

There was not even the slightest hint in Din that aliens overseas are entitled, in the words of the Ninth Circuit’s panel, to “notice and a hearing prior to restricting” her “ability to travel. This holding is made up out of whole cloth. Even if the aliens covered by the Executive Order are protected by the Due Process Cause—a striking proposition with respect to refugees in particular, who have no connection to the United States—then there is no conceivable requirement that they be afforded a hearing before being denied entry. A consular stamp that says “denied under § 1182(f)” will provide all the process that is due. The end result of the court finding that a due process right attaches yields the same end result: the President can deny entry through a consular notification that the alien is barred by his proclamation under § 1182(f). Here, the panel opinion collapses under its own weight.

Likewise, I agree with the dissental that Justice Kennedy’s opinion in Din concerns the decision of the consular officers, and not hte policy-makers.

Because the panel never discussed Din, let alone claimed that Justice Kennedy’s comment might allow us to peek behind the facial legitimacy of the Executive Order, I need not address the argument in detail. Suffice it to say, it would be a huge leap to suggest that Din’s “bad faith” exception also applies to the motives of broad-policy makers as opposed to those of consular officers.

There is one portion of Judge Bybee’s opinion with which I part company–indeed, it is the portion that has received the widest praise. Part III addresses the “public discourse that has surrounded these proceedings,” referring not-too-obliquely to Trump’s statements about the courts.

Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

I can do no better than quote from Seth Barrett Tillman’s post:

Moreover, it is wholly “out of … bounds” for an American judge to instruct litigants that their out-of-court statements are inconsistent with “effective advocacy.” Even if not specifically intended, the natural, probable, and expected effect of the dissent’s language is to chill constitutionally protected speech.* It amounts to a directive, from the court** to the lawyers before it, to instruct their clients to shut up during ongoing litigation. Bybee’s extraordinary language here demands a response from the public, the wider legal community, and the elected arms of the government.

Article III judges are protected by lifetime tenure in office and salary which cannot be reduced by Congress.*** They are not supposed to be insulated from “intense public scrutiny.” Nor should judges instruct litigants before them to limit their constitutionally protected out-of-court speech, and to encourage such limitations under the threat of what is or is not “effective advocacy.”

To reiterate a point I made in Politico today, the court should not take the bait:

A common trope among the chattering class is that our polity must resist “normalizing” Trump as president. Courts should not take the bait. When judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors. For example, when Justice Ruth Bader Ginsburg suddenly skips Trump’s joint address—whom she inappropriately criticized—after years of giving President Barack Obama warm hugs, it sends a signal. Such behavior is par for the course on cable news, but should not infest the judiciary. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such.

Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). It is insane to think that the president’s signature policy so far—on which he campaigned and was elected to the highest office in the land—ostensibly boils down to how Giuliani framed an impromptu answer on cable news. I don’t think it does. Consider a counterfactual where Giuliani skipped Fox that day. Would the policy now be ruled constitutional? I suspect the courts would still have struck down the orders, meaning Giuliani’s statement is “mere surplusage”—an irrelevant distraction that carries no legal weight. What matters to these judges is Trump, and Trump alone.

Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference). It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.

Update: On this last point, I add Judge Bill Pryor’s analysis in the Virginia Law Review:

When I consider the public criticisms of the judiciary, I am re- minded of the adage our mothers taught us, “Sticks and stones may break my bones, but words will never hurt me.” Judges are adults and should be treated as persons of “fortitude, able to thrive in a hardy climate,” as Justice Brennan wrote in New York Times Co. v. Sullivan.93 Critical words about the judiciary are not a serious threat to judicial independence. . .  .

Many of those who complain about criticisms of the judiciary concede that some criticism of judicial decisions is fair, but that as- sessment is too mild. Criticism of judicial decisions is essential to the progress of our constitutional republic. That was true when President Lincoln opposed Dred Scott, and it was true when Thur- good Marshall, as an attorney, urged the Court to depart from Plessy.

And for an reminder of actual attacks against the Court:

To be sure, there have been recent and reprehensible incidents of violence and threats against judges, but we should not forget that those kinds of isolated crimes have occurred before. An infa- mous example is described in the 1890 opinion of the Supreme Court in In re Neagle when Judge David Terry assaulted a U.S. Deputy Marshal in a courtroom where Justice Stephen Field was delivering a decision against Terry’s wife.116 Judge Terry and Justice Field had served together as members of the California Supreme Court. The Terrys later repeatedly threatened to kill Justice Field, but in 1889 a Marshal killed Terry as he assaulted Justice Field in the dining room of a train station. The Marshal thought that Terry was about to stab Justice Field with a bowie knife that Terry had drawn in the courtroom altercation the year before.117 I also am frequently reminded of another example because I work in the former chambers of the late Judge Robert Vance, who was mur- dered by a mail bomber in 1989.118 These violent offenses typically involve disgruntled litigants or dangerous criminals, not harsh crit- ics of the judiciary as a whole.

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Remarks by the President at Make America Great Again Rally

Last night, as the Ninth Circuit decision was handed down, the President was addressing a Nashville crowd at the “Make American Great Again Rally” (yes, that is how WhiteHouse.gov referred to the event). As Trump is wont to do, he trained his fire at the Ninth Circuit. Read his remarks in their entirety, rather than scanning excerpts.

Last night, the constitutional law professor list-serve was abuzz, predicting that the President’s intemperate remarks would wind their way into a future brief, further cementing the “forever taint” of anti-Muslim animus.

In particular, about a dozen professors offered their best fact-checking of this portion:

We’re going to fight this terrible ruling.  We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court.  (Applause.)  We’re going to win. . . .

Remember this, I wasn’t thrilled, but the lawyers all said, let’s tailor it.  This is a watered–down version of the first one.  This is a watered–down version.  And let me tell you something, I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first one.

Some said “all the way” referred to going back to the initial executive order. Others said it meant go “all the way” to the Muslim ban, which was proposed, and later abandoned on the campaign trail. One professor referred to the President’s “sweeping upwards gesture with his arm” to suggest that the President was actually referring to appealing all the way up to the Supreme Court.

I have no idea what Trump meant. After writing a few chapters in Unraveled about the election, I gave up trying to pin Trump down to a consistent meaning because he will often contradict himself in a single sentence. Pundits are free to pore over these statements. But as I noted in my Politico piece, it is absolutely insane for Article III courts to assume the role of fact-checkers, and assess animus based on how these remarks fit in with statements that Rudy Giuliani and Steven Miller have made, combined with Trump’s 2011 appearance on the O’Reilly Factor.

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New in Politico Magazine: “Why Courts Shouldn’t Try to Read Trump’s Mind”

Politico Magazine published my new essay, “Why Courts Shouldn’t Try to Read Trump’s Mind.”

Here is the introduction:

More than a decades ago, Justice Souter warned courts that when searching for an impermissible religious purpose, they should resist performing a “judicial psychoanalysis of a drafter’s heart of hearts.”

And yet, in Hawaii and Virginia, the courts have done exactly that—halting President Donald Trump’s executive order on immigration by trying to read his mind. On Wednesday, a federal court in Hawaii concluded that Trump’s revised order violates the First Amendment’s prohibition that the government “shall make no law respecting an establishment of religion.” This opinion basically cribbed from a February decision by a federal court in Virginia halting the president’s initial executive order for the same reason. In both cases (and despite the fact that the administration made significant changes to the policy between them) the judges gleaned from the orders a malicious intent by parsing punditry from Trump and his surrogates, particularly Rudy Giuliani, on cable news.

I vigorously oppose the president’s immigration orders as a matter of policy, but these opinions are misguided. As O’Connor warned, it is not the court’s job to peer into the president’s psyche. And it doesn’t matter if Trump is somehow different than his predecessors, or if he insults judges in a shocking breach of Oval Office decorum. The judiciary should not abandon its traditional role simply because the president has abandoned his.

On the topic of “forever taint”:

This entire line of analysis is mistaken. The courts tarred Trump with the brush of bigotry by citing statements that were not connected with the executive order at issue, but rather showed his general state of mind towards Muslims. Such introspection is precisely what Souter advised against in McCreary County v. ACLU: a “judicial psychoanalysis of a drafter’s heart of hearts.” Generally in courts, “evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Absent evidence that the policy at question in fact was actually motivated by this anti-Muslim animus—and no, Giuliani’s nebulous comments do not count—the court’s opinion amounts to a psychological profile of a perplexing man who has taken contradictory policies on virtually every issue in public discourse.

Although the judge in Hawaii rejected the notion that Trump’s “past conduct must forever taint any effort by [him] to address the security concerns of the nation,” it is hard to see how this analysis would ever permit the executive branch to impose any immigration policy that impacts predominantly Muslim countries. Imagine if Trump announces that he will conduct drone strikes in Syria to root out “radical Islamic terrorists”? Could a court halt the actions, finding they were motivated by the same anti-Muslim animus the president expressed on the campaign trail? Or, could a court halt an executive action for supposedly bearing animus towards women, by citing the president’s infamous rapport with Billy Bush on Access Hollywood? Nothing Trump can do would ever eliminate that taint.

And to keep the cable-news theme, the conclusion:

A common trope among the chattering class is that our polity must resist “normalizing” Trump as president. Courts should not take the bait. When judges treat this president as anything other than normal, it sends a signal to the public that the chief executive is not as legitimate as his predecessors. For example, when Justice Ruth Bader Ginsburg suddenly skips Trump’s joint address—whom she inappropriately criticized—after years of giving President Barack Obama warm hugs, it sends a signal. Such behavior is par for the course on cable news, but should not infest the judiciary. Trump was elected through the same constitutional process by which judges received their lifetime commissions. He should be treated as such.

Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why aliens seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). It is insane to think that the president’s signature policy so far—on which he campaigned and was elected to the highest office in the land—ostensibly boils down to how Giuliani framed an impromptu answer on cable news. I don’t think it does. Consider a counterfactual where Giuliani skipped Fox that day. Would the policy now be constitutional? I suspect the courts would still have struck down the orders, meaning Giuliani’s statement is “mere surplusage”—an irrelevant distraction that carries no legal weight. What matters to these judges is Trump, and Trump alone.

Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference). It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.

I will have more to say about this in a series of blog posts today. I will be doing NPR All Things Considered, as well as Fox Business’s Lou Dobbs Tonight.

 

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5th Circuit Denies Rehearing En Banc in Defense Distributed v. Department of State, Over Five-Vote Dissent

On November 4, Defense Distributed filed its petition for rehearing en banc in the challenge to the State Department’s prior restraint. The government’s reply was filed on November 23. After sitting on the court’s docket for nearly four months, the Fifth Circuit has denied rehearing banc. The vote was 9-4.

The Court having been polled at the request of one of its members, and a majority of the judges who are in regular service and not disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED. In the en banc poll, five judges voted in favor of rehearing (Judges Jones, Smith, Clement, Owen and Elrod) and nine judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Dennis, Prado, Southwick, Haynes, Graves, Higginson and Costa).

Judge Elrod, joined by Judges Jones, Smith, and Clement, issued a dissental. (Judge Owen, who dissented from denial of rehearing, did not joint he dissental). Her opinion is on point:

The panel opinion’s flawed preliminary injunction analysis permits perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint. Judge Jones’s cogent panel dissent thoroughly explores the flaws in the panel opinion. I write here to highlight three errors that warrant en banc review. First, the panel opinion fails to review the likelihood of success on the merits—which ten of our sister circuits agree is an essential inquiry in a First Amendment preliminary injunction case. Second, the panel opinion accepts that a mere assertion of a national security interest is a sufficient justification for a prior restraint on speech. Third, the panel opinion conducts a fundamentally flawed analysis of irreparable harm. Accordingly, I respectfully dissent from the denial of en banc review in this case.

My co-counsel and I offered this statement:

 “We agree with Judge Elrod’s dissent that the court’s decision ‘permits perhaps the most egregious deprivation of First Amendment rights possible.’ Although the 5th Circuit would not rehear our case, Defense Distributed’s rights are still being violated. This case is far from over.”

Stay tuned.

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