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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