09 February 2017

Two Bad Dudes and a Nasty Woman

… passed the Bar. And now they're so-called "judges" on the United States Court of Appeals for the Ninth Circuit — with life tenure on good behavior… Let me start over.

A unanimous per curiam decision of a panel consisting of one Heffalump appointee and two Jackass appointees grabbed Trump's immigration decree by the…

No, that's really not any better, is it? Let's try again:

Mr Drumpf got some unwanted publicity today when the Ninth Circuit panel basically told us that they expected more from first-year law students than they got from his Department of Justice appointees. There are lots of juicy quotes, and even more juicy implications, in the per curiam (jointly written and not "authored" by a single judge) opinion rejecting Drumpf's demand to stay the temporary restraining order issued against the incredibly bigoted new "immigration policy" last Friday in Seattle. Here's the one that tells us that there was a problem with the government's positions that 1Ls would be expected to avoid:

[T]he Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally permissible means of implementing that power”).6 Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).

6 See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954) (reaffirming the broad power of Congress over immigration, but observing that “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process”); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (reaffirming, in the context of adjudicating a constitutional challenge to an immigration policy, that “this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution”); Chae Chan Ping v. United States, 130 U.S. 581, 604 (1889) (“The powers to declare war, make treaties… and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”)

Washington v. Trump, No. [20]17–35105 (9th Cir. 09 Feb 2017) (per curiam), slip op. at 13–15 (emphasis in original) (PDF).

The panel's citations to Boumediene and Hamdi — one of the notorious Detainee Trilogy cases in which reviewability was pretty firmly established — are telling. So, too, are the citations to Quirin, to Milligan, to Aptheker, and to Endo — all four of which make appearances in one or both of the basic constitutional law course taken by every law student and the slightly-more-advanced federal courts course taken by law students with any aspiration to litigate in federal court. (One might speculate that this panel is subtly setting things up so that the Supreme Court can finally get around to overturning Korematsu v. US, 323 U.S. 214 (1944), a "self-inflicted wound.") All that would have been really necessary to complete the humiliation of the unprepared Department of Justice advocates would have been a citation to that two-century-old chestnut Marbury v. Madison, 5 U.S. 137 (1803)… or, perhaps, to the Seventh Circuit's recent excoriation of then-Governor Pence.

And it gets better once the panel actually reaches the merits.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.

Washington v. Trump, slip op. at 26–27 (footnotes omitted).

Another bad day at the office, Mr. Drumpf. See you in court.