If Courts are to designate themselves functional directors of DHS, such mandate must come from the Supreme Court, not the 9th Circuit.
The decision of the 9th Circuit Court of Appeals to leave in place a broad Temporary Restraining Order freezing President Trump’s Executive Order on visas and refugees presents a serious threat to the constitutional and statutory authority of the presidency.
By leaving an overly broad TRO in effect that protects even persons who are abroad with no prior connection to the United States, and by refusing to narrow the TRO, the 9th Circuit effectively extended to such persons U.S. constitutional due process rights both to apply for a visa and in the visa process.[*]
Not only that, while not disputing the President’s inherent constitutional and explicit statutory authority over foreign affairs, including security procedures as to the admission of aliens, the Court nonetheless designated to itself the judgment as to what constituted a sufficient threat for the President to exercise that authority. The President’s reliance on Congressional and Department of Homeland Security analyses as to threat assessment was explicitly rejected by the Court as sufficient basis.
To make matters worse, the Court weaponized every state with a public university system to have “standing” to access the courts for suit to interfere with the exercise of these presidential powers. The theory is that because such universities admit and interact with foreign students, they have a sufficient legal interest. Because every foreigner of an age suitable to higher education is a potential student at U.S. universities, this standing is almost limitless. Every Democratic Governor or Attorney General seeking headlines and campaign donations now has a platform in which to dispute the President’s national security decisions, and that platform is federal court.
If a state has standing to dispute visa decisions because the potential applicants are potential students, then why don’t such states have standing to dispute actions such as drone attacks which may kill some of those potential students without due process of law? Similarly, states would have standing to sue under any domestic policy that might somehow impact students. Flimsy and overly broad determinations of standing are not mere legal niceties.
I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.
That would be a grievous mistake.
The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.
This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.
If the Courts are to designate themselves the functional directors of the Department of Homeland Security, then such mandate must come from the Supreme Court, not the 9th Circuit.
[* The wording of this sentence was modified after publication for clarity.]