Judge Robart's dunce cap
Does the 9th Circuit want anyone to assert border integrity? Doesn't look like it.
Late in the day last Saturday, the 9th Circuit Court of Appeals denied president Trump's DOJ emergency request to stay the temporary restraining order issued by Seattle federal district court judge James L Robart.
Judge Robart blocked Trump's executive order temporarily halting travel from seven countries, whose ties to terrorism pose a significant security risk to the United States.
The 9th Circuit completely forgot about its own opinion from 2011 in Arizona v. United States, wherein it affirmed a lower court ruling that struck several Arizona statutes intended to thwart illegal immigration. Arizona was sued by Obama's DOJ for usurping the federal supremacy in immigration and lost. The basis for the 9th Circuit opinion was primarily the Supremacy Clause:
The federal preemption doctrine stems from the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the "fundamental principle of the Constitution that Congress has the power to preempt state law."
Apparently the 9th Circuit, wanting to sleep in this Sunday morning, was also too lazy to examine the earlier Trump DOJ pleading that opposed the original complaint from the states of Washington and Minnesota to invalidate Trump's executive order:
Congress has "plenary power" over the admission and exclusion of aliens, Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), and here expressly has delegated to the President the broad power to suspend entry "of any class of aliens into the United States." 8 U.S.C. § 1182(f). The President's exercise of his Section 1182(f) authority is committed to his discretion by law, and thus judicial review is precluded. Moreover, that delegation, combined with the President's own Article II powers in this realm, placed the President at the apex of his authority when issuing the Executive Order.
As the Supreme Court repeatedly has held, Article II confers upon the President expansive authority over foreign affairs, national security, and immigration.
See Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ("The exclusion of aliens is a fundamental act of sovereignty ... inherent in the executive power to control the foreign affairs of the nation.");United States v. Curtiss-Wright Exp. Corp., 299 U.S.304, 320 (1936) (discussing "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress[.]")
The U.S. Supreme Court in June 2012 concurred with the 9th Circuit in Arizona by reinforcing the supremacy of the federal government – both Congress and the president – over the states in immigration and national security. From several parts of the syllabus from the SCOTUS opinion:
Held: 1. The Federal Government's broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to "establish an uniform Rule of Naturalization," Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States[.] ...
2. The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115. Intent can be inferred from a framework of regulation "so pervasive ... that Congress left no room for the States to supplement it" or where a "federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230. Second, state laws are preempted when they conflict with federal law, including when they stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 67. Pp. 7–8. 3.
3. Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law. Pp. 8–19.
(a) Section 3 intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. In Hines, a state alien-registration program was struck down on the ground that Congress intended its "complete" federal registration plan to be a "single integrated and all-embracing system." 312 U. S., at 74. That scheme did not allow the States to "curtail or complement" federal law or "enforce additional or auxiliary regulations." Id., at 66-67. The federal registration framework remains comprehensive. Because Congress has occupied the field, even complementary state regulation is impermissible.
So on the one hand we have the 9th Circuit, bolstered by POTUS, establishing federal supremacy over immigration matters. On the other hand, Judge Robart would deny the federal government's authority over immigration matters, permitting piecemeal nullification by the states.
Indeed, if the 9th Circuit upholds Judge Robart's TRO, allowing the states to annul federally established immigration prerogatives while frustrating the president's sole authority in conducting foreign policy and executing national security, then no one – neither the feds nor the states – will have any authority to establish sovereign borders, nor protect such borders in any manner.
President Trump was justified in labeling Robart a "so-called" judge. Perhaps Robart can be given a temporary pass for just being a fool. After all, Robart could have devoted five minutes in reading Boston federal judge Nathaniel Gorton's opinion on the same topic, issued a day earlier, denying petitioner's request to overturn Trump's E.O.:
The power to admit or exclude aliens is a sovereign prerogative and aliens seeking admission to the United States request a "privilege." Landon v. Plasencia, 459 U.S. 21, 32 (1982). It is "beyond peradventure" that "unadmitted and nonresident aliens" have no right to be admitted to the United States. Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990). There is no constitutionally protected interest in either obtaining or continuing to possess a visa.
Here, the President has exercised his broad authority under 8 U.S.C. § 1182(f) to suspend entry of certain aliens purportedly in order to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks. Exec. Order 13,769 § 3(c).
We'll see soon enough if Judge Robart's dunce cap is a "one size fits all" variety, easily issued to the 9th Circuit appellate jurists. Of course, dunce caps, some custom-made, are often the headgear of choice among the learned judiciary, even for the U.S. Supreme Court.