President Trump recently released an Executive Order banning the travel to the United States of citizens of several terror-infested nations (1). Federal Judge James Robart of Seattle issued a temporary restraining order in response to the EO, and a 9th Circuit panel subsequently ruled against the government’s attempt to have it lifted (2).
For those unfamiliar with federal immigration law and the Immigration and Nationality Act (INA), the statutory provision giving the President the authority to exclude foreigners from the United States is 8 U.S. Code Section 1182. More specifically:
(f)Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline (3).
The most important words in this portion of the statute are that the President “may…as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.” (Emphasis added). Put plainly, this means that as a legal matter, the President can wake up on Monday morning and decide Canadians should not enter the United States. All that is necessary is that he deem it necessary. If the President were in a particularly nasty mood, he could even legally bar all foreigners from entering the United States.
This is not to suggest that any such prohibitions would be good ideas as a matter of policy. I only seek to illustrate how broad the Executive’s power is under the statute. It was logical for Congress to delegate this authority, as the Executive directs the nation’s law enforcement, immigration and intelligence operations and is the only branch equipped to respond quickly to new information suggesting that the presence of some group of aliens is detrimental to U.S. interests.
This post is not meant to be a detailed dissection of the 9th Circuit’s decision, as other (and more talented) commentators have already taken up such work. I primarily want to highlight why the decision is so disturbing. As pointed out by President Trump, and as even some left-wing commentators have admitted, the Court remarkably did not address the text of the statute I have cited above. This is a stunning omission.
The opinion drones on at length about prior Supreme Court and Circuit Court decisions regarding immigration, but does not address directly the statute under which the Executive claims authority to act! Had an attorney in private practice made such an omission in his own filing to a court, he could likely be charged with malpractice in having failed to identify the law at issue in the case. But for the judiciary to commit this error is far more ominous.
I suspect that this was judicial activism of the most guerrilla variety. The Court could not reach this decision after undertaking an analysis of Section 1182 given that the section’s text clearly shows that the President acted not only within, but well within the scope of his authority. But they had likely decided that as a matter of policy (not the appropriate domain of the judiciary, incidentally), they wished to halt the EO, so therefore crafted an opinion that suspended the President’s order without bothering to address the INA. Had they addressed the INA directly, they would have had to declare an entire section of the statute unconstitutional, thus laying bare to an even greater degree the utter jurisprudential bankruptcy of the decision.
In this light, the decision appears rather like a childish judicial rebellion. By ignoring the INA, the 9th Circuit judges signal their awareness that the Supreme Court would likely reverse them eventually. However, given the inherent procedural delays involved, many of the immigrants that the President sought to bar by means of the EO will be admitted permanently without going through the more intense vetting that the President sought to have implemented. In the near term, judicial activism wins.
In the old days, you could at least rely on the 9th Circuit to twist the Constitution and bend the wording of statutes to come to the result they wanted pending the eventual overturn of their absurdity by the Supreme Court years later. Perhaps understanding this themselves, they have now decided to get out of the business of citing statutes entirely.
As a matter of fairness, I only hope that the nation’s law schools have decided to spread the wealth around and hold first-year students to the same standard. Don’t feel like citing statutory provisions in your mock briefing? No problem. Think back to Poli Sci 101 and write about what you think the law should be. If well-paid judges get to do it, why not starving students?
Thank you as always for taking the time to visit. I appreciate any comments you wish to offer, and as I always remain most respectfully
K. Evanston Treadwell
(2) For context, this post is primarily focused on the following 9th Circuit opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf. I may write further on this matter if there is any interesting development as a result of the Judge’s recent en banc request.