Despite a surprising lack of media attention, the Ninth Circuit saw a relatively rare filing of a dissent in the appeal of the first executive order. Critics of the order have celebrated the panel decision, though many of us (including opponents of the immigration order) criticized the opinion as poorly written and supported. Nevertheless, critics have said that four judges in that case ruled against the President. (That is not counting Judge Brinkema in Virginia). However, the count is now roughly even for the first appeal of the order. In a surprising move, five judges (including the highly respected former Chief Judge Alex Kozinski) filed a dissent to the motion for rehearing. The blistering dissent showed that a significant number of Ninth Circuit judges strongly disagreed with the decision of the panel. (Some judges may have not approved of the panel decision but did not see the need for a rehearing). As previously raised by experts, the strongly worded dissent belies the claim that the original executive order was legally unsustainable. To see this type of vociferous dissent in a withdrawn appeal is remarkable in itself but it also shows the depth of opposition to the panel’s decision among other judges.
The dissenting judges objected that there is an “obligation to correct” the “manifest” errors of the panel. It called those errors “fundamental” and even questioned the manner in which the panel reached its decision with a telephonic oral argument. The dissent raised many of the problems that various commentators have raised, including myself. The lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority are obvious flaws. (These problems are also apparent in the ruling in Hawaii, though it was based on establishment rather the due process grounds) The dissenting judges refer to the “clear misstatement of law” in the upholding of the district court. so bad it compelled “vacating” an opinion usually mooted by a dismissed case.
The judges said that the panel simply “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972). Indeed, the panel noted that the panel missed entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977). In a statement that is particularly probative of the Hawaii ruling, the Supreme Court in Mandel recognized that first amendment rights were implicated by the executive action but found that “when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant.”
These five judges joined in the analysis of the court in Boston in accepting the rational basis for the President’s actions. They insisted that “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.”
The opinion has all of the legal analysis that is so conspicuously absent in the panel decision, which dismissed or ignored countervailing case law of the Supreme Court and even the Ninth Circuit. The panel poignantly noted:
We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.
The only judges to join in a written defense of the denial were the three judges from the panel — Judges William Canby, Richard Clifton, and Michelle Friedland — and perhaps the most liberal member of the Ninth Circuit, Judge Stephen Reinhardt. The original panelists noted that “The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration.” Reinhardt added a not-so-veiled dig at critics (and likely the President himself): “I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”
It is also worth noting that Bybee clearly indicated the judges — liberal and conservative alike — opposed the attacks by President Trump on judges:
“The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy.”
Here is the opinion: 17-35105 en banc
162 thoughts on “Five Ninth Circuit Judges Issue Rare Dissent Rebuking The Panel In Immigration Ruling”
One thing you all are fogetting: the Constitution gives no authorization to any court to nullify a law passed by Congress and signed by the president, not does it allow judicial review of Constitutional law Congress passed on to the president the constitutional authority of immigration. The judiciary was not given authority to nulify, modify, or even comment on the action of the executive or Congress. “All laws must originate in Congress”. Any judicial prohibition would in fact be the repeating a law by ordering another law to nullify the original. The three EQUAL branches of government would not exist as the courts could override and vacate every law passed by Congress and signed it the president.Thank John Marshell
One thing you all are fogetting: the Constitution gives no authorization to any court to nullify a law passed by Congress and signed by the president, not does it allow judicial review of Constitutional .Congress passed on to the president the constitutional authority of immigration. The judiciary was not given authority tonulify, modify, or even comment on the action of the executive or Congress. “All laws must originate in Congress”. Any judicial prohibition would in fact be the repeating a law by ordering another law to nullify the original. The three EQUAL branches of government would not exist as the courts could override and vacate every law passed by Congress and signed it the president
Money quote. And let’s remember that it was exactly the motives of the President which were impugned by 2 courts. So this is rich:
“It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy.”
Can I get an “amen” for a 2-way street, here?
Talk of impeaching what people may construe as activist judges is like cutting off one’s nose to spite one’s face when we have a President tweeting as yet groundless schoolyard allegations that his predecessor surveilled his home. If anyone is out of control and needs to be publicly reined in, it’s Trump. Nonetheless, the crowd is silent.
Steve, read the NY Times, January 20, 2017.
All talk of impeachment, especially on a dispute where the country is equally divided, is futile when one considers the high bar for conviction. The point is that overtly political behavior by a partisan in an explicitly political branch of government is in no way comparable to overtly political activity in an ostensibly non-political branch of government. Let us remember that it was “a switch in time that saved nine.” And a more recent example: credit John Roberts for fastidiously observing this propriety in contorting legal logic like a pretzel to uphold Obamacare.
With all the talk of Trump’s authoritarian proclivities (which I would not dispute) and the audacious expansion of the Imperial Presidency unwittingly bequeathed him by his immediate predecessor, wise men tread warily. The judiciary has no power to enforce its rulings save that provided by the executive. It was Dwight Eisenhower that removed Orval Faubus from the schoolhouse door, not Earl Warren.
The District Judge in Hawaii was asked for clarification. Instead of responding appropriately, he impudently refused to do so. Now if Trump and his administration construe the situation to their taste and enforce the order as they see fit, where is the complaint? Surely you have not failed to observe that Jackson is Trump’s populist model. And as Jackson famously remarked: “John Marshall has made his decision: now let him enforce it!
My sense is that this extraordinary dissent by the five judges is informed in roughly equal parts by: 1) concern for proper respect for the integrity of the bench by the political branches and 2) a recognition that the judicial activism by some (many?) of their colleagues has played an unfortunate part in precipitating a lack of respect and even a potential Constitutional crisis.
Now I have no dog in this fight as both the Imperial Presidency and judicial activism represent threats to the integrity of our republic. No mere political issue can be allowed to take precedence over that consideration and I believe that these five judges have demonstrated a similar concern. The crowd may (always) be silent but they are not…if one chooses to listen.
Rick: Thanks for your thoughts. I don’t dispute much of what you wrote, but I want to comment on the following statement: “The District Judge in Hawaii was asked for clarification. Instead of responding appropriately, he impudently refused to do so. Now if Trump and his administration construe the situation to their taste and enforce the order as they see fit, where is the complaint? Surely you have not failed to observe that Jackson is Trump’s populist model. And as Jackson famously remarked: ‘John Marshall has made his decision: now let him enforce it!'” Either we’ve got three co-equal branches or we don’t.
First, there’s a dispute as to whether Andrew Jackson stated what you’ve quoted. Certainly his actions after Marshall prevented Georgia from extinguishing Indian property rights in the Cherokee Cases implied that message, however.
The US was not at war at that time, and it was up to Congress and its plenary authority over the Tribes to come up with a solution, not Jackson, under our constitutional framework. We all know what Jackson ended up doing (treating innocent human beings like savages), and we all know what Trump is capable of (and did in Yemen during just his second week in office along with moving ground troops into Syria). So, too, for example, with Lincoln when the Taney Court (correctly in my opinion) found his unilateral suspension of habeus corpus to be unconstitutional. Taney knew he couldn’t enforce the writ, and Lincoln thereafter thumbed his nose at it.
As for the clarification the Dept. of Justice requested of Judge Watson, the initial temporary order was based if not entirely then in large part on “significant and unrebutted evidence of religious animus” coming out of the President’s mouth. Further, my understanding is that this is a TRO pending a preliminary-injunction hearing at which Trump’s selection as US Attorney can provide that rebuttal. Perhaps Watson thought there’s no need to amp up this case by an ex parte clarification hearing at which time Justice would presumably attempt a second bite at the apple, add new or different facts, and/or strengthen its base in the court of public opinion.
“Either we’ve got three co-equal branches or we don’t.”
We don’t, we never have. It’s part of our public mythology….only slightly less grandiose than some other manifestly false articles of faith like “all men are created equal.” Certainly the Federalist Papers acknowledged that the judiciary would, and appropriately, be a weak reed…reliant on the power of moral suasion. Even “judicial review” is customary rather than established explicitly in the Constitution. It is why the wise jurist proceeds with caution where only fools go in. The fools would do well to listen to their five wiser colleagues….which is the point of this entire discussion.
Moreover, every perception that you have or could conjure up regarding what the latest occupant of the Imperial throne could do, if push comes to shove, is a further argument not to put respect for the judiciary, or even the republic, at risk over a baldly partisan kerfluffle.
The current hysterical reaction to Trump ignores the fact that there will be life after Trump and possibly still greater challenges. One would think, from its place in history, the Rubicon to be a mighty river but it is a very unimpressive and middling stream when you get right down to it. Partisans with closed minds and hell bent on their agenda are the real source of danger to our republic. And they never realize it until someone as disrespectful of the Constitution as their man (but with a very different agenda they do not approve) is seated on the throne and employing the very tools and precedents they loved so much only yesterday.
Eloquently put, Rick. I thought the sentence you quoted might have a reaction from you when I wrote it. No foul there. Frankly, though, I’d rather place more than two-thirds of the power in the Legislative and the Judiciary branches than allow the President more than one-third if we’re going to slice the pie in any fashion other than co-equal. Otherwise we get dictatorial buffoons without appropriate checks and balances.
As for the “five wiser colleagues,” the 9th Cir. three-judge panel wasn’t hearing the case on the merits, and the trial court had a preliminary-injunction hearing pending for such a determination.
I always go back to J. David Souter’s advice to J. Sonia Sotomayor with regard to the other Justices’ seeming legislation from the bench:
“The best advice she says she’s received was from Justice David Souter, whose retirement in 2009 precipitated her appointment to the court. A few days into her tenure, Souter told Sotomayor to remember that her colleagues on the court were people of goodwill who were committed to law and the Constitution. Once he reached that realization, Souter said, he had a much easier time disagreeing with them. Sotomayor told students that this advice has made her stop, listen, and be more respectful of other justices’ viewpoints.”
A republic as opposed to an empire does not require a brilliant leader as President, chafing under the burden of accommodating to lesser mortals. In fact, it is well served by someone who is under no illusion that he is “the smartest guy in the room” or that those who oppose him are evil people or acting out of personal malice…an immature personalization of politics and the very opposite of the credo you endorse.
Most modern states have a figurehead “head of state” and an elected “head of government.” We have combined the two roles in a single individual and it is a hazard…inviting the personality cult of the “great man.” Unfortunately, the qualities now required to attain the office do not comport well with the Constitutional intent. And thus the progression from Obama to Trump becomes not merely feasible but almost logical.
Those who understood the danger in Nixon’s assertion that if the President does it, it can’t be illegal, seem most recently, with Obama, to be incapable of appreciating the problem when an executive tries to tell a legislature the rules under which it must function and that he will cover for what he deems their negligence in legislation…what our founders would instantly recognize as a Stuart monarch run amuck. And, Trump is just getting started playing with that pen and phone that Obama left behind. But the problem lies neither with him or Obama personally…it’s institutional.
The aggrandizement of the Executive branch is a problem that can eventually bring down a republic. Yes, there is an implicit need at times for dictatorship from an executive but when everything is portrayed as an existential crisis, you are abusing it and have crossed over the line into tyranny. This is our story since at least the Great Depression.
The concentration of power in Washington, in general, and in the Imperial Presidency, in particular, is our critical problem. Can the genie be put back in the bottle? Are we grown so large and powerful, are we so beset with crises that the republican form of government is no longer appropriate? To get back to the point: the judiciary has a role to play here but not if it allows itself to foolishly get involved in mere partisan politics and thereby squanders its meager power.
Lord, grant me the serenity to accept the things I cannot change, Courage to change the things I can, And wisdom to know the difference. Appropriate plea for even the SCOTUS.
You’ve offered not one word about the self-aggrandizement of the judiciary or the dysfunctions of the legislature or our otiose state governments. Get back to us when you have something worth saying and not tricorn-hat posturing.
We are not sitting for a dissertation here…the subject of the proper role and stance of the judiciary vis a vis executive power has been amply dealt with. Your intellectual poverty and inability to follow a discussion thread is not my problem.
“[The Presidency] is well served by someone who is under no illusion that he is “the smartest guy in the room” or that those who oppose him are evil people or acting out of personal malice…an immature personalization of politics and the very opposite of the credo you endorse.”
Just for the record, I don’t think he has to be the smartest guy in the room or paranoid either. But he has to have an acute sense of responsibility and manage well. I’m not keen on Alexander Hamilton’s form of federalism, though I think a central government is what holds the glue together if the Civil War means anything.
“The aggrandizement of the Executive branch is a problem that can eventually bring down a republic. Yes, there is an implicit need at times for dictatorship from an executive but when everything is portrayed as an existential crisis, you are abusing it and have crossed over the line into tyranny. This is our story since at least the Great Depression.”
I agree with the first sentence wholly and last sentence after the conjunction, immediately above. What’s been whitewashed through every administration since I’ve been alive is the usurpation of executive power that goes unchecked. It’s a constant expansion of power through each term. The opportunity for the President to use the military and intelligence communities to insulate his authority from the other two branches is very real but euphemistically known as national security. While the Judiciary has the pen, the President has the button. Hence, I disagree with the assumption of dictatorial power for nearly any purpose, and I cannot think of a circumstance where there’s implicit authority for a dictatorship unless and until the other two branches of government have collapsed.
It’s an interesting topic, but not one that allows me much flexibility knowing a judicial opinion is just a piece of paper, but the President, as you say, can bring down the Republic.
“[second] sentence after the conjunction . . .”
“Hence, I disagree with the assumption of dictatorial power for nearly any purpose, and I cannot think of a circumstance where there’s implicit authority for a dictatorship unless and until the other two branches of government have collapsed.”
I know you are aware, from earlier in this thread, of the dictatorship imposed by Abraham Lincoln and I will assume that you agree it was necessary. The problem is when the dictator thinks or portrays himself as indispensable long after the existential threat has passed (or, perish the though, never existed). Archetypically, Cincinnatus, mission accomplished, returned to his plow. It is why we celebrate his name to this day.
“It’s an interesting topic, but not one that allows me much flexibility knowing a judicial opinion is just a piece of paper, but the President, as you say, can bring down the Republic.”
All the more reason, as the five good judges reminded their brethren, to be circumspect and sparing in reliance on that frail reed.
Not htat it matters (or not much) but Obama several times stated he was the smartest person in the room, and, iirc, expounded that it mattered not the specialty on display before him he still knew the most…. Made me laugh frankly.. At the time, I kept a political blog and disliked him and was happy to post every time he said it. He made lots of self-aggrandising comments during his time.
I particularly remember one instance in interview (of this ”smartest” crap) iwht Lara Logan, which I think was during the campaign but might have been in his first year.
I never thought he was esp smart (tho a conniver) and I never thought he or MIchelle bothered much to read…. so it was a joke imo. As in, farcical.
Well the Obama administration is over. We can lament the precedents he set but it’s the actions of the current (and future) occupants of the Imperial throne that need to concern us now. I am simply seconding the concern of these five wise judges that the credibility of the judiciary not be wasted on foolish partisan efforts to legislate and execute policy from the bench. It may yield momentary psychic satisfaction but the end price could be devastatingly high. There may come a day when all the strength it can muster may be needed. Waste not, want not.
Yes I have noticed Obama is no longer in office. And, btw, I agree with the action of the 5 judges. I was relieved the 5 stepped forward as they did.
I see Judge Watson in Hawai’i is declining to “clarify” his injunction, saying it is all clear. hmmm – and elsewhere, reports that as many as 30 countries are refusing to take back their citizens, here illegally, who are being deported for having committed crimes. Time to suspend visas to the most egregious among them. At least. Educational, work, travel.
Cut off the foreign aid, too.
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