Think Tank

Trump's Order and the Ninth Got it Wrong

On February 9th the political drama of President Trump’s executive order took an old turn when his opponents translated a political fight into a constitutional question and thus dragged the courts into the ring of battle. This is nothing new. But I will leave discussion of that political truth for another day.

President Trump issued an executive order stopping immigration from seven specific countries. He did so under a federal statute - 8 USC § 1182(f) which states:

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants”

A limitation on that power is noted in 8 U.S.C. § 1152(a)(1)(A) which states, regarding the granting of visas,

“no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

The case was before the Ninth Circuit on appeal by the government asking for an emergency stay on the Temporary Restraining Order (TRO) that was granted by the District Court Washington. To prevail, the government had to establish that it was likely to prevail on the merits. The merits should have been based on sections 1182 and 1152.

It is a legal maxim that if a government action can be held lawful or unlawful based on statutory interpretation, the constitution is not to be invoked. In its brief the Trump Administration asserted that the executive order was lawful under section 1182, and the states of Washington and Minnesota, in part, argued that the executive order violated section 1152. The stated goal of the executive order was, “to prevent infiltration by foreign terrorists or criminals” and pursuant to that goal, “I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from [Iraq, Syria, Libya, Somalia, Sudan, Yemen, and Iran] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days.” The state response was that the “suspension” was a vainly disguised “ban” on all Muslims; which is prohibited under section 1152.

The problem is that the Ninth Circuit opinion bypassed this argument entirely. There was no mention of either statute or the legal arguments that they provide either side.

The court bypassed the true legal dispute and engaged in the Fifth Amendment arguments that Washington and Minnesota asserted, in part, because they had a weak argument standing on section 1152 alone. The Fifth Amendment Due Process Clause protects a person’s right to life, liberty and property and prevents the government from taking it without a hearing.
The opinion asserted that under the Fifth Amendment Due Process clause, the executive order violated the rights of legal residents, citizens and aliens who wish to return to the United States and travel from the United States. The Government, in its papers and at oral argument, asserted that the application of the order to the first two groups was an error in application and would no longer apply to them. That should have made the entire issue regarding the order and its application to legal aliens and citizens moot! But the court held that since the order was applied to citizens and legal aliens in the first two days of the order and there was no official proclamation from the President himself preventing such application, the court could not take the word of a legal memo from the White House Legal Counsel that similar application would not occur in the future. As such, the executive order violated the Fifth Amendment.

To make a long story short, there is no Fifth Amendment right for people who are not citizens or legal residents to assert in the first place, and in the second, aliens who are not in the United States have no right to a visa. The Fifth Amendment applies to those who have property rights in the United States. That property right exists by being physically present, having legal status or being a citizen. It is true that illegal aliens have a right to a hearing once in the United States, but that is only to determine if they are illegal and should be removed. It does not create a right for travel, and the right to a hearing does not translate into a right to come to the United States from another country. To get around this the court held that aliens who have contracted with the state universities to come into the United States as students or teachers have created a Fifth Amendment Due Process property right to travel, that the state governments can defend on the aliens behalf.

Since the government could not prove, to the Ninth’s satisfaction, that it would prevail on the due process claim because it could not prove people from the seven countries were a threat, they were not entitled to an emergency stay of the TRO. The Government lost because it was held to a due process test, not to whether its executive order could be supported under section 1182. The court chose the wrong test.

But this error may not be long lived. A day after the decision, the Chief Judge of the Ninth Circuit informed the Government and the states of Washington and Minnesota that a judge on the court had “made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel . . . should be reconsidered en banc.” The court explained in a press release that “under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a “sua sponte en banc call.” The Chief Judge’s order gave both parties a deadline of February 16th “setting forth their respective positions on whether this matter should be reconsidered en banc.” The court explained in its release that “after the briefs are filed, a vote is scheduled on the en banc call. . . .If a majority of the active, non-recused judges vote in favor of rehearing en banc, then the case is reheard by the en banc court. . . . The en banc court consists of the Chief Judge, and ten non-recused judges who are randomly drawn.”

With such a request it is almost certain that the Ninth will review the decision en banc. Because many believe the panel decision was wrong on the law, there is a good chance this decision will be overruled. 


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