Today the Supreme Court will hear Hernandez v. Mesa, a case with potentially significant impact on the current immigration debate. The case involves the shooting and killing of Sergio A. Hernandez Guereca, 15, at the border on June 7, 2010. The family argues that Hernandez was simply playing a game with his friends in running to touch the U.S. border fence when Border Patrol agent Jesus Mesa, Jr. shot and killed him. The agents insist that Hernandez was a known illegal alien smuggler with two prior arrests and was throwing rocks at the agents. Since the government prevailed below before the United States Court of Appeals for the Fifth Circuit, the Court will only consider the facts asserted by the family in determining if dismissal was appropriate. At issue will be the right of a foreign national to assert constitutional rights — an issue that could have bearing on the ongoing debate over the Trump immigration executive order.
President Trump said today that he will sign a new immigration executive order next week and that he would appeal the 9th Circuit Court’s ruling against his travel ban. He further called the Ninth Circuit a court “in chaos” and “turmoil.” I do not see the chaos or the turmoil on the Ninth Circuit, which is the largest circuit in the country. One can certainly disagree with the decision on the executive order, but the panel decision was a good-faith decision of three judges who unanimously ruled against the order on the effort to stay the lower court’s temporary restraining order (TRO). Update: there appears another disconnect between the White House and the DOJ. In today’s filing the DOJ requested that the Nunth Circuit vacate the prior order because the new order will rescind and replace the old order.
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.
I previously discussed my surprise over the clumsy performance of the Justice Department in defending the Trump executive order on immigration. Those concerns were magnified after the oral argument before the Ninth Circuit that was made available on YouTube. The performance by August Flentje, special counsel to the assistant U.S. attorney general, was surprisingly lackluster and seemingly ill-prepared. The shaky start that I described earlier seems now to be seismic as the Justice Department stumbles toward a ruling that can come as early as today. As Flentje observed during his uninspired argument “I’m not sure I’m convincing the court.”
The government filed its reply on February 6th and followed earlier arguments in favor of an appellate stay of the lower court order of Senior District Court Judge James Robart. As discussed earlier, a temporary restraining order is very difficult to reverse on an interlocutory appeal. Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy. Of course, nothing is “normal” about this controversy in terms of procedure or policy.
The United States Court of Appeals for the Ninth Circuit has declined a demand for an immediate reinstatement of the Executive Order on immigration but has scheduled expedited arguments and filings in the case for Monday. The decision is not surprising in such a case. Courts need to hear from the other side in the dispute, particularly when the Washington Attorney General prevailed in the trial court. Moreover, a temporary restraining order is very difficult to reverse on an interlocutory appeal. Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy. Of course, nothing is “normal” about this controversy in terms of procedure or policy. With a major executive order stayed, the Ninth Circuit is clearly moving with dispatch but deliberation. The Justice Department team was not helped by President Trump’s tweets casting aspersations on Judge James Robart of Federal District Court in Seattle as a “so called judge.” Such comments undermine the credibility of the claims. It is less compelling to demand respect for the executive branch if you are viewed as denigrating the judicial branch. While there is ample reason to question the ruling of Judge Robart, but he is a respected judge who made a good-faith decision on a tough legal question. He is not a “so-called judge” but a real judge and has the Senate confirmation to prove it. Having said that, media playing up the “rejection” by the Ninth Circuit are not being entirely accurate. The Ninth Circuit wants more argument and has not reached the merits. There is still question whether it will reach the merits on a TRO appeal. I still believe that President Trump has the advantage legally and we could see this order stayed. The question is when and how since this remains a temporary restraining order without a written opinion from Judge Robart.
The controversy over the Trump immigration executive order has already produced sharply conflicting orders from courts in Washington state and Massachusetts. A judge in Seattle has issued a temporary restraining order nationwide over the executive order while a judge in Boston declined to do so. Such divergent results are not uncommon in such controversies. However, as I have previously explained, I believe that the law favors the Administration despite good-faith arguments advanced by the challengers. Moreover, even if courts strike down a portion of the executive order, it is likely that other portions will be upheld on review. While I have been very critical of the order (and how it was rolled out), I still believe that the weight of binding authority on these trial courts favors President Trump. We should get an answer sooner than expected: the Administration has decided to ask for an emergency order from the Ninth Circuit to block the Seattle court. In the meantime, the airlines have been told to start to allow people on planes to the United States and the Justice Department is apparently not filing the emergency motion tonight. That means that people will start to arrive before the Justice Department files. It could look a bit curious that the Administration is claiming a national security danger in these entries but would wait to file the emergency motion.