I won’t say the Judiciary is our only hope, but like Princess Leia and the Rebellion, the fate of our free Republic depends significantly on old men (and women!) in robes.
Yesterday the Ninth Circuit rejected Presidential Executive Order 13769, the President’s immigration ban. “…[T]he government has not shown a likelihood of success on the merits of its appeal,” wrote the court, “nor has it shown that failure to enter a stay would cause irreparable injury.”
The government contended that the plaintiffs, the states of Washington and Minnesota, lacked standing. The court rejected that argument, pointing to the “concrete and particularized injury to their public universities”:
According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons [United States Court of Appeals, Order, Washington and Minnesota v. Trump et al., #17-35105, 2017.02.09, p. 10].
The court also upheld the right of universities to defend the rights of their students and faculty members.
The Trump Administration further failed due to its overreaching arrogance (anyone who has read any literature should see this coming):
The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence…. Instead, the 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.
…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”) [emphasis mine; Order, Washington v. Trump, 2017.02.09, pp.13–14].
The government contended that the urgency of the threat to national security shields the President’s action from judicial review. Quoting from numerous cases, the court said even war does not trump the court’s duty:
…[C]ourts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty….
“The Constitution of the United States is a law for rulers and people, equally in war and in peace… under all circumstances.”
“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal…. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties… which makes the defense of the Nation worthwhile.”
“[S]imply because a statute deals with foreign relations [does not mean that] it can grant the Executive totally unrestricted freedom of choice” [Order, 2017.02.09, pp. 16–17].
The government contended that Constitutional rights don’t apply to the non-citizens affected by the Executive Order. The court pointed to the plain language of the Fifth Amendment, which protects every “person”, not every “citizen.”
The Court showed its openness to weigh constitutional harms against “the Government’s interest in combating terrorism… an urgent objective of the highest order.” However, the government failed to give the court any competing public interest to weigh:
Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.
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 [Order, 2017.02.09, pp.27–28].
The government contended that guidance from White House counsel Donald McGahn to exempt lawful permanent residents from the Executive order mooted part of the plaintiffs’ argument on behalf of aggrieved green card holders. The court denied the White House counsel’s authority to amend a Presidential action and took a sly swing at the caprice of the current White House:
The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur” [Order, 2017.02.09, pp. 21–22].
Washington Attorney General Bob Ferguson said last night, “[T]he future of the Constitution is at stake.” He’s right. The government’s arguments and the Ninth Circuit’s rejection thereof show the fundamental danger posed by this White House: its arrogant assumption that it can do whatever it wants, without the support of evidence or the Constitution.