A legal analysis of the Ninth Circuit's dangerous usurpation of presidential power
Federal district judge James Robart violated the Constitution in issuing a TRO (temporary restraining order) against President Trump's temporary entry ban for citizens of seven countries. Now a three-judge panel of the Ninth Circuit Court of Appeals has affirmed that stay.
What we have here is a creeping constitutional coup. As long as President Obama was in charge and had a massive open-door policy at our borders and at our airports, in violation of statutory law, the judiciary was content to be silent. But when Donald Trump became president and tried to use the powers of the presidency to put some national security safeguards into place, the judiciary sprang into action.
The judiciary has usurped the executive branch's powers and has created a parallel constitution – one that bears no relation to the founding document of our nation. The courts have now cited this parallel constitution to justify taking away the ultimate decision-making authority concerning national security from the presidency to rest in their hands. The constitutional crisis and injury to our national security caused by this illegitimate decision cannot be overstated.
What follows is an analysis of this travesty and the damage done to our system of jurisprudence and national security.
1) The legal concept of standing has been eviscerated. In order to sue, one must have "standing," essentially to show that one is an injured party. The state of Washington, among others, sued claiming that its state-owned universities were harmed because a few students from the affected seven countries could not come to their campuses. The Ninth Circuit (hereinafter "the Court") found that these grounds gave Washington standing to sue.
As of now, the concept of standing is now meaningless. The idea behind standing was to limit frivolous lawsuits so only people directly injured could sue. The Court's expansion of standing means that a state can now sue on behalf of anyone, for any reason. This is important because if anyone can sue on behalf of anyone, the courts become immensely more powerful. Remember that courts cannot get involved until someone sues. With standing gone, anyone can sue, and the court can immediately then exercise its power, as was this court's intent in doing away with standing.
2) "Irreparable harm" has been turned upside-down. One of the standards the Court used to adjudicate this case was to see if either party would suffer irreparable harm. The Court found that the University of Washington would suffer irreparable harm if students from Somalia and Yemen were temporarily delayed from coming to the U.S. The U.W. system has tens of thousands of students. The number of students affected here would be a small handful. The Court considers an action that would affect a tiny handful of students in a huge student body irreparable harm.
On the other hand, the Court does not think that the dangers of admitting unvetted foreign nationals who might be terrorists constitute irreparable harm. The Court demanded that the Trump administration prove that there is a terrorist danger from these countries. But the Trump administration is not obligated to prove the terror threat, because the Court has no jurisdiction in this area. It would be as if the Court suddenly demanded that Trump get approval for his DHS cabinet pick from an appeals court and struck down Trump's choice because he didn't submit evidence showing that his DHS pick is suitable. This is a mad, naked power-grab.
The Court opined:
When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States' university employees and students, separated families, and stranded the States' residents abroad. These are substantial injuries and even irreparable harms.
Can you believe this? To consider the inconveniencing of a handful of students as an irreparable harm and the national security of a nation as unimportant shows that this court is fully in wanton disregard of the law, not to mention common sense.
3) National security policy has been wrested from the presidency and placed in the hands of the judiciary. National security is traditionally left to the presidency; indeed, the Court cited cases in support of this.
See, e.g. Cardenas v. United States , 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that "the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control" see also Holder v. Humanitarian Law Project , 561 U.S. 1, 33-34 (2010) (explaining that Courts should defer to the political branches with respect to national security and foreign relations).
But the Court says this deference is not absolute, and when judges feel they want to overrule the executive branch, they can. They even cited cases for that proposition as well:
see Zadvydas v. Davis , 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration "is subject to important constitutional limitations");
Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has "unreviewable authority over the regulation of aliens," and affirming that Courts can review "whether Congress has chosen a constitutionally permissible means of implementing that power")
See, e.g. Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal Courts of jurisdiction over habeas petitions filed by non-citizens being held as "enemy combatants" after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001)
These cases are not constitutionally correct. The Constitution does not apply to foreign nationals. The Constitution is an agreement among the American citizenry. No one else. It doesn't apply to the people of Iraq, or Somali nationals who come here, or Yemenis with an American visa. By citing cases that were unconstitutionally decided, you can see how far back the judicial rot extends – the Courts have built precedent for a shadow constitution, which allows them to grab power from the executive.
4) The Due Process Clause has been expanded to add seven billion people. The Court cites the Due Process clause, which states in part, "No person shall ... be deprived of life, liberty, or property, without due process of law." The problem is that foreign nationals are not legal "persons" under our Constitution. How could they be? How could we ever legally go to war or take action against a foreign country or a foreign group without letting them have their day in court? The implications are truly ridiculous.
The Court writes:
The procedural protections provided by the Fifth Amendment's Due Process Clause are not limited to citizens. Rather, they "appl[y] to all 'persons' within the United States, including aliens," regardless of "whether their presence here is lawful, unlawful, temporary, or permanent.
How could that be true? The Constitution applies to aliens? And the Court doesn't even have the courage to state its ultimate conclusion: that Due Process extends not just to aliens in America, but even to aliens in other countries who want to come to America. Because that's what they've extended it to.
5) The Court maliciously avoided a narrowly tailored legal remedy. Even if the Court honestly believes its own argument, its relief should be narrowly tailored to the handful of students affected at the University of Washington. Instead, it used this case as a wedge to assert its primacy over national security and to open the entire nation to unrestricted entry.
6) The Court disingenuously employed false religious protection claims.
The Court said:
The First Amendment prohibits any "law respecting an establishment of religion." The States' claims raise serious allegations and present significant constitutional questions.
Again, the Court has no jurisdiction here. The people affected are not Americans. The Trump administration can exclude Hindus, Muslims, Christians, women, red-haired people, anyone it wants to. Of course, this is not a Muslim ban, but even to play into that argument presumes that the Court has the power to rule over this. It doesn't.
7) False consideration of "public interest." The Court says it has to consider "the public interest" in deciding. No, it doesn't. It has to consider only the Constitution.
Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay [of the TRO.]
So the Court weighed free entry to America for foreigners against national security for Americans. How to decide? The Court said, for now, that free travel for foreigners into America is definitely more in the public interest!
8) Conclusion: The false choices: Where do we go from here? Some commentators will say to appeal this to the full Ninth Circuit (this was a three-judge panel). Others will say to appeal this case to the Supreme Court. Still others will say to redraft the legislation to better meet the Court's dictates and current mood swings.
These are all false choices. It is like people coming into your home and telling you that you cannot redecorate it without their permission. Submit a proper plan, and perhaps they will approve it. The only way to win this game is not to play.
Yes, President Trump should appeal to the Supreme Court, but with a 4-4 split there (which will continue for months), his victory is far from assured.
More primarily, he should immediately disavow the Court's authority in this matter and order his officials to reinstate the ban. Trump will be said to be provoking a constitutional crisis, but let us be clear: it is the courts that have provoked this constitutional crisis, and Trump's entry ban is a relatively mild one. Remember, to secure the country, he is going go to have to do much more than this moderate executive order:
Let's say that Trump actually wants to have a permanent ban on refugees from Syria or Iraq, for security reasons. A Court could overturn it on the same grounds. Suppose Trump wants to stop all refugees coming to America for a year. A Court could actually force Trump to let 100,000 or more refugees in, if Trump lets them. A Court could stop Trump from doing enhanced vetting, claiming it discriminated against Muslims from ISIS infested countries. A Court also stop Trump's border wall, claiming it would have a negative effect on a snail or a worm.
That's why Trump can't give in on his relatively limited executive order. If he does, he will give the Courts a green light to keep America an open borders country.
If Trump does nothing, merely playing out the process, he may well lose his constitutional power to protect our borders. And while we wait and watch matters go through the courts, every day, more and more terrorists could be coming into our country. There is no time to wait.
Ed Straker, the senior writer at NewsMachete.com, is an attorney by training who studied constitutional law at Harvard Law School.