Lessons from State of Washington v. Trump

By Mike Appleton, Weekend Contributor

“A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions.”

-Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613 (1952)

The decision of the Ninth Circuit Court of Appeals earlier this week upholding the temporary restraining order against enforcement of Executive Order 13769 produced immediate outrage in the Trump Administration. The President himself characterized the ruling as “disgraceful” and claimed that any subsequent act of terror on our shores would be laid squarely at the feet of the judiciary. Mr. Trump has been variously advised to take the matter to the Supreme Court or ignore the lower court orders entirely. In my view, the wisest option is to return to the drawing board, an idea that is apparently also under consideration.

The anger over the Ninth Circuit’s ruling is misplaced. It is neither warranted by the decision itself nor by the perceived threat to presidential power. The court did not rule on the merits of the plaintiffs’ claims and its continuation of the TRO until completion of an evidentiary hearing in the trial court is not fairly predictive of the final outcome. Moreover, the Administration has not advanced any substantive argument, either in court filings or in public statements, to support the notion that temporarily maintaining current immigration policy creates serious security risks. Indeed, we are still waiting for an explanation of what the phrase “extreme vetting” even means.

Instead of railing against the decision and engaging in personal attacks against judges, the President would be well-advised to read the opinion carefully. It contains several useful lessons for the future of his presidency.

The first, and most important lesson, relates to the limits of presidential power. The government argued that the President’s authority in immigration policy is not subject to judicial review, that the President has “unreviewable authority to suspend the admission of any class of aliens.” In response the court noted, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” State of Washington v. Trump, No. 17-35105 (February 9, 2017), at 14.

Variations on this argument have been made by other presidents. Richard Nixon claimed that absolute executive privilege precluded the subpoena of documents and recordings of conversations with White House staff members in connection with criminal investigations. In rejecting that argument, the Supreme Court observed that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” United States v. Nixon, 418 U.S. 683, 706 (1974).

Harry Truman was thwarted in his efforts to nationalize the steel industry, despite his assertions that his actions were lawful exercises of his powers as commander in chief in the interests of national security. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). As we were reminded by the Court in Baker v. Carr, 369 U.S. 186 (1962), “Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as the ultimate interpreter of the Constitution.” Id. at 211.

The second lesson from the Ninth Circuit opinion is that policy positions, regardless of the stated reasons for their adoption, may run afoul of constitutional prohibitions if the evidence indicates that those stated reasons are merely pretextual. The President’s oft-repeated campaign promises to banish Muslims from entry into the United States, the court stated, are proper areas of inquiry when assessing the constitutionality of the Executive Order because “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” State of Washington v. Trump,  supra, at 25. The Executive Order’s prioritizing of refugee claims by persecuted individuals who are members of minority religions in their country of origin certainly raises serious constitutional questions.

The third lesson to be drawn is suggested by the opinion as a whole. It is carefully drafted and moderate in tone, its language clear and concise. In the tradition of good judicial craftsmanship, the court deals only with those issues it deems necessary for the narrow purposes it intends to serve, concluding only that the government “has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury.” Id., at 3.

The challenged order is a classic example of overreach: ill-conceived, sloppily drafted and poorly implemented. A wise counselor would advise the President to regard the Ninth Circuit opinion as instructive rather than reproachful or censorious. He is not the CEO of the United States, a closely-held corporation. An Executive Order is something more than an occasion for another photo opportunity. Immigration policy should not be seen as a sword to wield in short-sighted wars against multi-cultural understanding and religious pluralism. Presidential power should not be regarded as primarily an instrument of retribution or ever exercised,  whatever the cause, for its own sake. In sum, the presidency is not a benevolent dictatorship. If Mr. Trump fails to grasp that idea, we are in for a bitterly litigious four years.

The views expressed in this posting are the author’s alone and not those of the blogthe host or other weekend bloggers. As an open forum, weekend bloggers post independently, without pre-approval or review. Content and displays of art are solely their decision and responsibility.
 

 

126 thoughts on “Lessons from State of Washington v. Trump

  1. I agree that the EO was poorly drafted and executed. It needed to be improved and implemented smoother. I found this article interesting on how the EO could be improved: http://thefederalist.com/2017/01/30/heres-trumps-immigration-order-says-needs-fixed/

    As far as refugees go, I believe that preference should be given to persecuted classes – Christians and Yazidis, for example, as well as children in need of Life Flights for medical help. Christians make up around 10% of the Syrian population, and are under threat of death, but comprise less than 1% of the refugees we have admitted. And they are the ones most in danger. That is extremely poor administration of the refugee program. It’s like letting in Nazi Germans over Jews during WWII. The reality is that if and when Assad gets ousted, he will likely be replaced by another extremist government. It’s like the Arab Spring; they are the most organized. Assad is a homicidal maniac deliberately targeting civilians, and his opponents include Al Qaeda and ISIS. How do you pick a side? In the meantime, the families in the middle get crushed and the non-Islamic religions suffer the most in any ME crisis.

    Trump’s EO was poorly crafted, vague on allowable exceptions, and it would have halted Life Flights, separated families if one of the parents was traveling abroad with a visa, and interfered with those traveling for humanitarian reasons. It could have, and should have, been crafted better.

    I fully support strengthening security against the many who would kill us all. It’s a never ending fight against terrorism. We can’t keep it all out but we can do our best to minimize it. We can still be compassionate to those in need, but it may not be PC. There are grieving families in San Bernardino and Boston who wish very greatly that we had done a better job vetting, and thousands grieving in NYC who wish we had been better at following up and acting upon expired visas.

    As for the Ninth Circuit – the American Bar Association lists the Ninth’s reversal rate as rather high. To be fair, here is an article explaining how to take those figures in context, and compares the Ninth to the even worse performing Federal Court:

    http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf

  2. “The court put the rights of the following people ahead of your safety:

    Two visiting scholars (one without a visa) who wanted to spend time at Washington State University;
    Three “prospective employees” of the University of Washington who had no visas; and
    Two medicine and science interns without visas.
    Yes, the court found that the make-believe “rights” of seven people (only one of which actually had a visa, and none of which were in the country) trump your right to live free and without fear. Their “rights” trump the national security interests of the U.S. government and its 300 million citizens. This is 100 percent wrong.”

    http://thefederalist.com/2017/02/13/ninth-circuits-stay-trumps-immigration-order-legal-garbage/?utm_source=The+Federalist+List&utm_campaign=d04c00a6d5-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-d04c00a6d5-79248369

    • Right ON! We need to spread the word about these plaintiffs who were given “standing to sue” by this federal court and then appellate court. This case must be a law school discussion from here on out.
      The Administration could do something here. Go vet the above named plaintiffs thoroughly and question them under oath. If there is anything wrong then kick them out. Do not ask permission from the court.

    • “Yes, the court found that the make-believe “rights” of seven people (only one of which actually had a visa, and none of which were in the country) trump your right to live free and without fear. ”

      Yes, it does look troubling….the Courts also gave real living rights to the make believe entity ‘Corporations’…ahead of and beyond that of regular American Ctizens. The Courts turn Women into punching bags, petri dishes and sperm husks for Man-wanna-bees….despite the denial of personal consent…the Courts also think your money looks really good in their pockets 😉 I believe it was Shakey-dat-spear that said the “Law is an Ass”….but as the ‘Law’ is just a compendium of people that used to command respect because they existed to PROTECT People and PROTECT rights….I, like much of John Q. Public, remain confused, dismayed and disgusted.

  3. With radical Islamic terrorism, we are being attacked regularly, and the terrorists’ ambitions are to deliver a devastating psychological blow similar or greater than 9-11. In weighing the grounds for a TRO, the 9th circuit took the position that the government needed to furnish documentation of impending threat of attack, knowing full well that the attacker is using secrecy and surprise as the mode of warfare. In declaring that the government failed to prove “impending irreparable harm” knowing that there can be no possible such apriori proof, the 9th Circuit demonstrated it is playing a political game. Should an attack occur in coming months or years where the attacker either got into the country thanks to the 9th Circuit, or was emboldened to attack based on this decision, the Federal Court system will suffer a loss of credibility as a co-equal branch.

    • Yeah, but you’re not taking into consideration the constitutional rights of non-U.S. citizens not currently in the United States who may or may not want live in a free society where they may or may not want to assimilate. Look at it this way, if you own a home and a stranger wants to be allowed entry into your home to become one of the family or not, you have an obligation to allow that person in regardless of whether or not you have enough information to determine with any certainty their motives. The mere fact they claim they want to live with you rather than somewhere else is far more important than you and your family’s life, liberty and property. To oppose this is irrational, unreasonable, Islamophobic, racist and therefore in violation of the rule of law.

      Do I have the argument opposing the constitutionality of the EO correct?

      • To equate people fleeing persecution from terror with persons who want to become part of your family is misguiding and corrupting to the facts. One of those things happens on a personal level where your say will affect your immediate family….and that person or persons you are considering as ‘family material’. The other sets precedent and tone for the laws and character of a Nation . A Nation that has never before Bush been so cowardly as to rush to war for Fear of potential consequence. This Country is free BECAUSE we are Brave. And we are not yet fully called Terrorists but that may soon change, if the rest of the World succumbs to it’s Fear and the best part of us remains silent…..

  4. So Olly, as a military man, how are you feeling about the Mar-a-Largo member who took a selfie with “Rick, the man who carries the nuclear football” and posts it on his Facebook page or the many Mar-a-Largo diners who were able to observe and take pictures of crisis national security discussions on Saturday night.

    Feel free to discuss in comparison to private email servers.

    • Patty,
      I’m not familiar with the story. What selfie, what diners, what national security discussions? For what it’s worth, I never saw pictures of the private email servers so I have nothing to compare this with.

    • Mar-a-Lago guest posts selfie with “nuclear football” holder to Facebook http://hill.cm/qR0eI5E Can this Trump crew do anything right? Maybe it is a good thing that they are so incompetent that they are having trouble carrying out their devious plans.

    • The aid with the black case/nuclear football by definition has to shadow the President at all times. They are often photographed with or near the President, most famously in Moscow with President Reagan in 1988. This has been going on since at least Kennedy. It’s also my understanding that there will be space set aside for the nuclear football and its handler in Trump Tower, just like there is space allocated on every vacation that Obama went to, every golf game, and every basketball game or drink of beer with a professor.

      This isn’t news. This is people who don’t understand the interesting details about our government and suddenly thinking it is new.

      • you’re kidding right? Could you please supply the referenced ‘selfies’ you equate w/the Trumpsters party antics? It seems to me that while I may not have agreed w/previous administrations I did not find such a lack of respect, propriety or decorum as is currently demonstrated by the Trump gang. It’s like they just can’t believe they’ve been given the keys to the car and who want s to take a pic! And you and Ms. Con job can just stop your ridiculous excuse making….just stop….it is demeaning on so many levels….

    • What is your evidence that top secret discussions went on in a public restaurant?

      Every President goes to public events, dinners, restaurants, etc. And they are usually accompanied by officials. They may discuss events, but that does not imply that they are discussing Human INT or other Top Secret information.

  5. What is “extreme vetting”? Well, beyond the simple meaning of the phrase itself, the court has no need to know. Disclosing the details of such vetting would render the process impotent.

    In United States v. Reynolds, 345 U.S. 1 (1953), dealing [418 U.S. 683, 711] with a claimant’s demand for evidence in a Tort Claims Act case against the Government, the Court said:

    “It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” Id., at 10.

  6. Who here thinks that, in a representative republic, our lowest court judges (state or federal) should be able to invalidate an act of legislature? Who thinks the opinions of those judges should expand that court’s personal jurisdiction so as to effect the entire state or nation?

    I don’t. I think it imposes the will of an unelected official upon the entire state or nation. The judges are no longer the referees, but the law makers.

    Is there a way to avoid this? YES. Lower court judges must rule IAW the statute. If the judge feels that a meritorious claim has been presented as to the constitutionality of an law, the judge may stay the execution of their judgment as to permit the case to be heard by the Supreme Court. – This provides continuity throughout the state or nation. It prevents (as we have seen with the travel ban) judge who finds the law to be constitutional to be muted by his peer who finds the law to be unconstitutional. Negative Nelly cannot, and should not, mute all others.

  7. Can’t wait for Comey’s letter on the ‘careless handling’ of national security documents that were being read by iphone flashlights while dining publically at Mar-a-Lago. (Asking or a friend if all of the Hb2 waitstaff have been given high security clearance.)

    Sending “get well quick’ messages to Olly who must have suffered a small stroke which has caused him to be unable to read about Trump and PM Abe’s visit to Mar-a-Lago this weekend which coincided with the North Korea missile launching of a rocket into the Sea of Japan.

  8. The participants at the dinner were discussing the cost of the prostitutes who work the hotel. It is all on Cloud 9. There was no national security breach.

  9. The public will be wise if they figure out that certain states think that they are on a par with the United States and can let in any migrant who gets in. If we allow this then we will be like Europe. If a terrorist washes ashore in Greece he can travel anywhere else in the EU he cares to go if he has some money for car, truck, train, plane or bicycles. If Washington can let em all in then Missouri needs a border and a wall.

    The Constitution confers “Powers” upon the United States government and “Powers” upon the states. No migration powers were conferred on the states. States do not have “Rights”. Individuals are afforded “Rights”. Never the twain shall meet: i.e. StatesRights! That StatesRights! thing was back when the feds were trying to stop the local sheriff and the Klan from lynching people.

    Washtington State has no Powers to let the migrants in or give them sanctuary. That state has no right to do so. That state does not have standing to sue on the issues before the court out there in libertyville. Bye bye Miss American Pie. Drove my Chevy to the levee and the levee was dry.
    I am changing my name to Hell In A Handbasket cause that is where I am going when the terrorists move in by me.

    • To be clear:

      The Constitution grants the federal government limited powers. Any powers not granted to the federal government are reserved to the states and the people. – See the Tenth Amendment

      The problem we have here (and what Judge Robart and the Ninth Circuit want to ignore) is that the Trump EO is within the limited Power granted to the federal government. What Washington and Minnesota have a problem with is that the power granted to the federal government is hurting them because students and professors who are here on visas, cannot travel the world freely. Well, tasty tough tacos. There are times when other are in charge that do things that cause you financial distress. You rolled the dice and lost. That doesn’t mean the federal government lacked the power to do what they did.

  10. The way I take Mike A’s article is like this analogy:

    Courts have an inherent right to hear murder cases. But does that cover something like what poor George Zimmerman went through? Because that was a case that should never have been heard. People have a right to self-defense, and from all availiable evidence that is exactly what happened. But the case became politicized, and squeezed into the Liberal Democratic Party Narrative of “poor black people being oppressed by mean white people.” So there was a trial. IMHO, the judge should have found for Zimmerman as soon as the prosecution rested its case. Or dismissed it out right from the beginning rather than let the court be politicized.

    IMHO, same here. The President has the right to keep out certain classes of people, and yes. . . courts have a right to review executive actions. But is that what happened here, or was it politicized because it could be squeezed into the Liberal Democratic Party Narrative?

    I think it pretty significant that the Ninth Circuit failed to discuss the actual statute at issue, and instead focused on Trump’s motives. Yeah, like that ain’t political. But I guess Mike A is sooo very trusting! I wonder if I can talk him into giving me his credit card number sooo I can order cat food for my starving kittens*???

    Squeeky Fromm
    Girl Reporter

    * (No. The kittens are very fat! But who couldn’t use FREE – – – Shoes! Books! New Guitars! Ivanka Dresses! If he is this trusting, he will never check the credit card bill!)

  11. Donald J. Trump

    @realDonaldTrump

    “The spotlight has finally been put on the low-life leakers! They will be caught!” Trump has declared war on leakers. When he was being helped by the leakers he praised them. Now that the tables are turned, it is all about him as usual.

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