Hawaii TRO and 9th Circuit En Banc Denial effectively strip Trump of executive powers (Update – Maryland too)
At this point, only the Supreme Court can restore presidential powers.
Two big developments on judicial usurpation of presidential immigration and national security powers.
The federal district court in Hawaii issued a TRO and the 9th Circuit denied en banc hearing of the first appeal. Both Orders are embedded in full at the bottom of this post.
The net result is that Trump has been stripped of his constitutional and statutory powers to protect the nation through control of who is permitted to enter the country.
I warned about this, and the danger of Trump not seeking Supreme Court review in the first case, President Trump must not back down on immigration Executive Order:
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….
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.
And now it’s playing out.
Trying to narrow and modify the 1st Executive Order has proven fruitless. The District Court in Hawaii issued a Temporary Restraining Order (full embed below)(pdf.) staying Trump’s 2nd Executive Order on immigration.
The short version of the decision is that Trump said bad things on the campaign trail, so anything he does that disproportionately affects Muslims seeking to enter the country must be motivated by religious bias. The district court wrote:
The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Executive Order violates the Establishment Clause of the First Amendment. Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.
Since foreign Islamic Jihadist threats are the prime visa and immigration threat to the nation, the president’s hands are tied by the judiciary on the issue. It doesn’t matter to the court that the six countries covered by the 2nd Executive Order have unique security risks because they have large Islamic Jihadist elements and non-functioning governments which cannot assist meaningfully in visa screening.
Prof. Josh Blackman reaches a similar conclusion:
“Although Judge Watkins rejected the notion that President Trump’s ‘past conduct must forever taint any effort by it to address the security concerns of the nation,’ it is hard to see how his anlysis would ever permit the executive branch to impost any immigration policy that has any effect on predominantly Muslim countries — no matter how small. The court’s analysis, which hinges on parsing statements by Trump and his surrogates on cable news, and determining whether the President repudiated his prior policies, is better suited for fact-checkers, not Article III courts.”
The 9th Circuit late today also issued an Order Denying En Banc Hearing (full embed below)(pdf.) of the appeal from the Washington State District Court retraining order. In a sense it’s moot, but it’s a preview of what the appeals court judges are likely to do on the Hawaii Order.
The Dissent by five judges, who want the full court to hear the case, is instructive and correct. Read the whole thing, it’s worth is. Here’s an excerpt:
BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.
I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.
The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error.
As discussed in prior posts, the power to control who enters the country is uniquely a presidential power. Not anymore, unless the Supreme Court acts to restore that power.
[This post has been modified after publication.]
UPDATE 3-16-2017: A Maryland federal court issued an injunction this morning (full embed at bottom of post)(pdf.):