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.
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