“So, what should the administration do? It should think long and hard — especially given its own considerable mistakes — before galloping to the Supreme Court.
The Ninth Circuit’s decision was bad enough that Trump now has to win, and the best way to win is to do things right, not to charge headlong into the legal cannonade.”
The Ninth Circuit Just Issued a Dangerous Ruling against Donald Trump’s Immigration Order
After the Ninth Circuit’s dangerous precedent, the Trump administration needs to slow down and consider its next move.
From National Review: By DAVID FRENCH February 9, 2017
It’s often said that bad facts make bad law. In the case of the Ninth Circuit’s just-issued ruling continuing the nationwide injunction against Donald Trump’s executive order pausing immigration from seven jihadist or jihad-torn countries, it’s necessary to amend that saying. Bad facts combined with superheated politics can make terrible law.
Before addressing the court’s ruling, let’s refer back to some of the bad facts that made it more likely. Critically, the Trump administration issued a significant executive order (and then defended it in court) without laying any real factual foundation for its finding. Next, the administration enforced the order in a haphazard and unnecessarily cruel manner, initially including even green-card holders in its scope. By slamming the door (at least temporarily) in their faces, it created a crisis atmosphere that not only ramped up the political stakes, it told the court that the administration didn’t exactly know how to interpret its own order. This invites judicial meddling.
What does the opinion actually say? It made four critical rulings and one dangerous implication.
First, the court ruled that the states of Washington and Minnesota had standing to assert legal claims against the Trump administration — mainly on behalf of their state universities and the scholars and students impacted by the order. Here’s the court:
- We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.
Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants — merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary.
Second, the court held that it had the constitutional authority to review and determine the legality of the order. This is the least problematic aspect of the court’s ruling. I don’t agree with the administration’s assertion that it has “unreviewable authority to suspend the admission of any class of aliens.” The order should receive judicial deference, but it is still subject to judicial review. And that’s what the court said:
- 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.
Third, after paying lip service to deference, the court ignored its own words and dramatically extended ‘potential’ due-process rights beyond green-card holders to citizens from jihadist and jihadist-torn countries seeking to enter the nation for the first time. After an extended discussion of the due-process rights of permanent legal residents of the United States (an unobjectionable and just proposition), the court specifically declined to limit the injunction to green-card holders — or even to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” Instead (and incredibly) it said this: