(This is the first part in a two-part series. Part II will be published tomorrow).
President Trump’s January 27 executive order on immigration sent shockwaves throughout our legal order. For 90 days, certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—deemed “detrimental” to American interests—would be denied entry. For 120 days, the Refugee Admissions Program would be suspended. Syrian refugees in particular would be denied entry indefinitely. Almost immediately after the order was signed, airport officials began to detain nationals of those seven nations. In what I’ve dubbed the Airport Cases, judges in New York, Virginia, Washington, Massachusetts, and elsewhere promptly ordered their release. But those emergency proceedings were only the beginning of the lawfare.
On Monday, January 30, the Washington Attorney General sought a temporary restraining order to halt the policy nationwide. (The state Solicitor General had planned this challenge well before the order was even signed). At the time, under the direction of Acting Attorney General Sally Q. Yates, the Justice Department was not even permitted to defend the order. However, after President Trump fired her, the government lawyers got to work, and filed a response on February 2. After an hour of oral argument the next day, U.S. District Judge James L. Robart ruled from the bench that the federal government must immediately cease enforcing the executive order.
Shortly thereafter, Judge Robart released a written opinion, styled as a temporary restraining order. However, the seven-page order offered only the most threadbare analysis. There was no indication whether the actions violated the Due Process Clause, the Equal Protection Clause, the Establishment Clause, the Free Exercise Clause. Nor was there any discussion of whether the President violated any statutory prohibitions. An extra hour of work between the judge and his law clerks could have resolved this glaring absence. Solely on the basis of this hasty and incomplete opinion, immigration officials around the country, and indeed consular officials around the globe, were now enjoined from implementing the order. Unlike most temporary restraining orders, which are limited in duration for a specific period of time (often less than two weeks), this order had no expiration date. Rather, Judge Robart indicated that he would promptly hold an evidentiary hearing, and decide whether a preliminary injunction was appropriate.
Not willing to follow that schedule, on February 4, the Justice Department asked the Ninth Circuit for an emergency stay pending appeal. The brief, signed by Noel J. Francisco, the acting Solicitor General, acknowledged that “temporary restraining orders are ordinarily not appealable,” but urged that the court had jurisdiction because of “the essence of the order, not its moniker.” In other words, even though Judge Robart called his decision a temporary restraining order, and so labelled it, wide-ranging decision should be treated “an appealable injunctive order.” Washington urged the court not to treat the temporary restraining order as a preliminary injunction, and “wait to review” the judgment until Judge Robart completed further proceedings.
On February 7, a three-judge panel—Judges William C. Canby, Richard R. Clifton, and Michelle T. Friedland—heard oral arguments. Barely forty-eight hours later, the panel issued a per curiam opinion that denied the emergency motion for a stay pending appeal. Treating the lower-court decision as a preliminary injunction, rather than a temporary restraining order, the panel found that Washington was likely to prevail on its claim that the order violated the Due Process Clause of the Fifth Amendment. The court implied in dicta that the order may also violate the Establishment Clause, but stopped short of so holding.
Contemporaneously with the published opinion, the panel also issued an unpublished briefing order, which asked the parties to file further briefs throughout the month of March. The implication of this order, apparently, was that because the court treated the district court’s decision as a preliminary injunction, there was no need for a remand for further proceedings before Judge Robart. Later that evening, Washington submitted a letter to the district court to that effect, stating that the Attorney General “assume[s] the district court briefing schedule is no longer applicable.” Judge Robart asked the parties to offer their positions whether “additional briefing and possible evidence on a motion for preliminary injunction is no longer required in the district court.”
Despite President Trump’s braggadocio tweet—“SEE YOU IN COURT”—early reports suggested that the administration would not appeal the panel’s decision to the Supreme Court. Presumably, the preference was to return to the district court, where the government could introduce evidence into the record to support the legality of the policy. At least one judge on the Ninth Circuit had other plans. Nearly twenty-four hours after the panel’s decision, Chief Judge Sydney Thomas issued an order: “A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” As a result, the parties would be required to submit briefs one week later—at the same time as Judge Robart considered whether he could maintain the case.
It is remarkable that a basic recitation of Washington v. Trump’s posture—which is less than two weeks old—required over 800 words. This fast-developing case has taken countless twists and turns in its infancy, and no doubt there are many curves lying ahead. The purpose of this two-part essay is to study carefully the reasoning in the Ninth Circuit’s panel opinion. Despite its well-meaning intentions, the per curiam opinion is, at bottom, a contrived comedy of errors.
First, the court grossly erred by treating a temporary restraining order—that contained no reasoning—as a preliminary injunction. The panel’s insistence that emergency relief be provided is irreconcilable with its own conclusion that no such emergency exists. Second, the panel offered zero analysis of the underlying statutory scheme, which is exceedingly complex and intricate. While it is true that this approach would not resolve all claims, as Justice Jackson reminded us six decades ago, the conjunction or disjunction between Congress and the Presidency informs the exactness of judicial review. This timeless lesson was apparently lost on the panel, which, third, applied the strictest of scrutiny to assess whether the executive order was justified based on “a real risk” rather than alternative facts. In a second part, which will be published tomorrow, I focus on two more grounds on which the panel erred.
Personal sentiments about this egregious order should not shade a candid assessment of precedent and constitutional law. This opinion, which enjoins a policy I personally find deeply regrettable, is itself deeply regrettable.
Discarding Neutral Principles of Appellate Review
As a general matter, temporary restraining orders cannot be appealed, outside of a writ of mandamus. Appellate review was not proper here. Washington sought a temporary restraining order. From the bench, Judge Robart called his decision a temporary restraining order. The written opinion was styled as temporary restraining order. Moments after oral arguments concluded, the judgment was issued. The seven-page decision, which offered zero analysis, in no way resembled the sort of reasoned decision-making that attends a preliminary injunction. Rather, it screams of a hasty decision that attempts to maintain the status quo until further proceedings can be held. Despite the fact that the order lacked an expiration date, the district court established a schedule to move on to a preliminary injunction. It is certainly true that the federal government implored the court to allow the appeal. (The wisdom of this strategy is subject to debate). But, the Ninth Circuit did not need to agree; indeed, this may be the only point of law where the Trump Administration prevailed!
A colloquy during the oral arguments illustrates the panel’s eagerness to prematurely reach these difficult constitutional questions, in the absence of a balanced evidentiary record. At the outset of his argument, Washington Solicitor General Noah Purcell stated that “Defendants have pursued the wrong remedy by seeking a stay in this court, rather than mandamus.” (30:29). He was right. Judge Clifton interjected: “Why should we care?” (31:14). The judge seemed undeterred by how everyone, save the scrambling Justice Department, understood Judge Robart’s decision. “You’re basically saying we shouldn’t look at it,” he told Purcell. “It’s hard to imagine an order this sweeping that shouldn’t be subject to some kind of appellate oversight,” he continued. “Why shouldn’t we view this as an injunction?” Purcell candidly explained that if the court considers this appeal, then the district court would not “have an opportunity to enter a more full preliminary injunction.” (32:25). Rather, the panel’s ruling would become the “ultimate” decision.
Discarding neutral principles of appellate review, the court prematurely reached profound questions about the constitutional rights of aliens abroad, without the benefit of an evidentiary hearing—a hearing that Judge Robart would have soon held. “We are satisfied that in the extraordinary circumstances of this case,” the per curiam opinion explained, “the district court’s order possesses the qualities of an appealable preliminary injunction.” True enough, the temporary restraining order was contested by both parties, and there was no expiration date on the order. Under the circuit’s precedents, these are factors to be considered. But, based on the tenor of the decision, neither was dispositive. What was the underlying reason for this decision? In a line that must have taken some chutzpah to write, the panel placed its imprimatur on the government’s argument that “emergency relief is necessary to support [the government’s] efforts to prevent terrorism.” If indeed the government’s immediate need to prevent terrorism was credible—every other sentence in the opinion dripped with skepticism of this proposition—then the stay should have been granted! However, if the government’s urgent interest was unsubstantiated, then emergency relief was not appropriate, and a one-page denial of mandamus would have been the appropriate remedy. Were this case ever to be appealed to the Supreme Court, the Justices should vacate the panel opinion due to a lack of jurisdiction.
“[D]id not bother to even cite the statute.”
The morning after Washington v. Trump was decided, apparently while watching Morning Joe, President Trump tweeted:
LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!
— Donald J. Trump (@realDonaldTrump) February 10, 2017
The quote was taken entirely out of context from a Lawfare post by Ben Wittes, but the President’s sentiment was absolutely correct. Despite writing nearly 30 pages, the Ninth Circuit panel failed to put into context the importance of the underlying statutory scheme.
The previous day, Trump offered an introductory lesson to statutory interpretation for a group of law enforcement officers. He read aloud 8 U.S.C. § 1182(f), which provides:
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, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Trump explained that the statute “couldn’t have been written any more precisely,” such that “a bad high school student would understand this.” This provision was the core authority for President Trump’s executive order, and also served as the statutory basis for prior denials-of-entry signed by Presidents Obama, Bush, Clinton, Bush, and Reagan. Despite the centrality of this provision to the case, the panel did not see fit to even cite § 1182(f).
During the oral arguments, the Washington Solicitor General urged the court that the Executive Order violated a statutory prohibition on nationality-based-discrimination. 8 U.S.C. § 1152(a)(1)(A), enacted a decade after §1182(f), provides that “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.” This provision, Washington argued, prevents the President from singling out aliens from those seven nations.
As I’ve written elsewhere (see Parts I, II, III, and IV), these statutes are not necessarily in tension—thus the later-in time canon does not control. Along these lines, Judge Clifton asked, “Why should we assume that with Congress enacting 1152 [it] meant to amend or partially reverse 1182.” (58:30). More directly, § 1152 only concerns the issuance, and not the revocation of visas. (The relationship between “entry,” visas, and admissibility is frankly complicated.). But most relevant to this case is that § 1152 only implicates immigrant visas. With respect to aliens with non-immigrant visas, or refugees who have no visas at all, the statute does not prohibit nationality-based preference. On this point, the panel pounced on Mr. Purcell’s suggestion that the statutory argument could resolve the case. “But the statutory ground would help us only with those seeking immigrant visas,” asked Judge Clifton. (56:18). Judge Friedland added that the statutory argument would not “avoid all of your constitutional claims because it would not cover everyone?” Here, the judges were directly on point. (With respect to any doubts about whether §1152 trumps §1182, the agreement of Congress and the Executive should counsel the judiciary to harmonize them, rather than read them in tension.)
A more careful study of the statutory scheme, however, would have radically altered the panel’s constitutional calculus. In his canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson explained that in separation-of-powers disputes—especially those implicating national security—there are rarely any meaningful precedents to guide judicial inquiry. Rather than employing Justice Black’s formalist framework, the former Attorney General adopted a functionalist approach: “Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.” (During their confirmation hearings, the last four confirmed justices agreed that Justice Jackson’s framework is our law).
Youngstown is a particularly apt precedent to consider in assessing Washington v. Trump. In both cases, plaintiffs asserted that the President’s actions to promote national security were ultra vires. In the former, the Youngstown Sheet and Tube Co. argued that Congress did not give the President the authority to seize steel mills to avert a labor strike. In the latter, Washington argued that Congress did not give the President the authority “to deny an immigrant’s entry into the country altogether” based on his nationality. Further, while both cases involved separation-of-powers disputes, the gravamen of their complaints concerned violations of the Fifth Amendment. The steel mill owners claimed that the seizures amounted to unconstitutional takings without compensation. Washington asserts that the executive order amounts to a denial of liberty without due process without law. Separation-of-powers dispute can only be brought to court when the actions infringe on a provision of the Bill of Rights. Otherwise, they are but mere nonjusticiable political questions.
Where the analyses part, however, concerns the questions about delegation and the appropriate level of scrutiny. In Youngstown, the majority opinion, and Justice Jackson in particular, concluded that Congress did not give the President the authority to seize steel mills to avert a labor strike. Because the President’s authority was “at its lowest ebb,” Jackson wrote, “a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Within this framework, President Truman’s executive order was set aside.
President Trump’s executive order does not wallow in Jackson’s third tier, nor does it linger in the so-called “zone of twilight.” Through §1182(f) Congress has, with unequivocal language delegated its Article I powers over immigration to the President. In Trump’s own words—as a relevant statement about the scope of his constitutional authorities—it “couldn’t have been written any more precisely.” Further, as a matter of inherent Article II authority, even in the absence of any statute, the President could deny entry to the United States of those he deems dangerous. As a result, the President was acting pursuant to an amalgamation of Article I and Article II powers, combined. Here, Jackson’s first tier provides the rule of decision:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
This basic statutory analysis provides the appropriate level of scrutiny that should have pervaded the entire decision: the executive order must be afford “the strongest presumption of constitutionality and the widest latitude of judicial interpretation.” The panel did the exact opposite, and applied strict scrutiny, affording the government only the slightest latitude in an area where the courts have the least competency: national security. The failure to even address the statutory issue allowed the panel to elide Justice Jackson’s framework, and thus not acknowledge how scrutiny should be applied.
The panel’s omission is even more inexcusable because Justice Kennedy’s concurring opinion in Kerry v. Din specifically articulated that due process rights attending the exclusion of aliens is informed by Congress’s delegations to the executive branch. Kennedy echoed Jackson’s wisdom:
Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Executive to decide when more detailed disclosure is appropriate. This considered judgment gives additional support to the independent conclusion that the notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses. . . . And even if Din is correct that sensitive facts could be reviewed by courts in camera, the dangers and difficulties of handling such delicate security material further counsel against requiring disclosure in a case such as this. Under Mandel, respect for the political branches’ broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.
Even before Din, circuit precedent reached a similar conclusion. Citing the Supreme Court’s 1953 decision in Shaughnessy v. United States ex rel. Mezei, then-Chief Judge Kozinski found for a unanimous panel that “procedural due process is simply ‘[w]hatever the procedure authorized by Congress’ happens to be.” Or, as the Supreme Court recognized in Landon v. Plasencia, “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application....”
If Congress affords the executive branch a broad power to deny visas to aliens he deems a threat, courts should presume that such a denial—with nothing more—is all the process that is due. Likewise, if Congress affords the executive branch a broad power to deny entry to aliens he deems a threat, courts should presume that such a denial—with nothing more—is all the process that is due.
As a more general matter, under the principles of Bi-Metallic Inv. Co. v. State Bd. Of Equalization, the Executive Order’s categorical judgment—as opposed to an individualized consular decision—is a quasi-legislative action, for which normal due process requirements do not even apply. Justice Breyer recognized this principle in his dissenting opinion in Kerry v. Din, stating that a general policy that results in the “deprivation” of rights for “hundreds of thousands of American families,” rather than an “individualized visa determination,” would not be subject to a traditional due process analysis. Beyond this case, if the Ninth Circuit’s precedent is meant to be more than a one-way ticket, much of the administrative state, which relies on generalized policy statements, would now be subject to attack under this capacious conception of due process. The en banc court would be wise to tidy up this mess.
Due to the conjunction of authority here between the executive and legislative branches, judicial scrutiny should be deferential, and courts should presume—unless there is precedent to the contrary—that Congress acted constitutionally. Disregarding this framework, the panel instead manufactured heretofore unknown due process rights, that neither Congress, nor the executive, nor the Supreme Court ever countenanced.
Strict Scrutiny and Suicide Pacts
A straightforward application of Justice Jackson’s framework—one my law students expertly apply on their final exams—would suggest that the courts should be deferential to the executive’s policy. However, all four judges who have worked on this case applied scrutiny stricter than anything I’ve ever seen—even in the Guantanamo detention cases or the Pentagon Papers case. In the district court, Judge Robart asked the Justice Department lawyer, “Have there been terrorist attacks in the United States by refugees or other immigrants from the seven countries listed, since 9/11?” Not whether there are any investigations, or arrests, but actual terrorist attacks. Despite these pointed questions, Judge Robart purported to apply rational basis review: “But I’m also asked to look and determine if the Executive Order is rationally based,” he said. “And rationally based to me implies that to some extent I have to find it grounded in facts as opposed to fiction.” This is most certainly not what rational basis review holds—especially in the national-security context. In any event, it was Judge Robart’s questions that were grounded in alternative facts.
In one of the more memorable exchanges of the hearing, Judge Robart asked, “How many arrests have there been of foreign nationals for those seven countries since 9/11?” The poor lawyer from the civil division, arguing on short preparation, replied, “I don’t have that information.” Judge Robart replied, “Let me tell you. The answer to that is none, as best I can tell.” As best as I can tell, Judge Robart is wrong. To provide a single instance, in October 2016, an Iraqi refugee in my hometown of Houston pleaded guilty of providing support to ISIS. One month later, a Somalian refugee engaged in a terror attack at Ohio State University with his car and a knife; in fairness to Judge Robart, the refugee was not arrested because an officer shot him first. The White House also released a list of two-dozen refugees from those seven nations who were arrested on terror-related charge. Though the connections to terrorism for some of these aliens are subject to debate, Judge Robart’s uninformed blanket statement is simply false.
The level of scrutiny increased on appeal. During the hearing, Judge Clifton asked the DOJ lawyer, August E. Flentje, “Is there any reason for us to think there is a real risk?” (9:12). That is, a real risk, rather than a fake risk. Flentje replied, with more far restraint than the question deserved, “The President determined there was a real risk.” (9:53). Earlier in the argument, Judge Friedland asked “Has the government pointed to any evidence connecting these countries with terrorism?” (8:10). Flentje answered that “there were a “number of people from Somalia connected to Al-Shabaab who have been convicted in the United States.” No, this was not good enough. Judge Friedland interjected, and asked “Is that in the record? Can you point where in the record you are referring?” This formalism is contrived. Appellate courts are fully empowered to take judicial notice of convictions in other courts of record. Such recognition is especially appropriate in a fast-moving case involving a temporary restraining order and national scrutiny. Rather than asking for the docket number of convictions, which the court could study, Judge Freidland instead hid behind an inexplicable demand for a record that she knows was never created.
In its published opinion, the court moved the scrutiny goal posts even further: “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.” It is no longer enough to identify aliens from these countries that were arrested, or even convicted of supporting terrorism. Now, the aliens must actually succeed in “perpetrat[ing] a terrorist attack in the United States.” This is absolutely bonkers. According to a Fact Check from the Associated Press, it is true that no Americans were killed by aliens from these seven countries since 9/11. But could this conceivably be the correct standard of review—especially in a field of national security where Congress gave the President plenary authority over exclusion? Can the court look askance if the government acts prophylactically to prevent the loss of life?
This standard, fabricated by the court, raises a morbid hypothetical: if, during the pendency of the injunction, an alien from one of these seven nations enters, and commits a terrorist attack, would the court sua sponte reverse its decision? Ignoring Justice Jackson’s wise words about zones of twilight, the panel tragically stumbled into another one of Jackson’s famous aphorisms: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Jackson, of course, did not mean that literally. The Ninth Circuit, apparently, did. In his Boumedienne dissent, Justice Scalia lamented that judicial intervention “will almost certainly cause more Americans to be killed.” In Washington v. Trump, the dynamics are reversed: judicial intervention is inappropriate because not enough Americans have been killed.
Part II of this series, which will be published tomorrow, will discuss the panel’s discussion of Kerry v. Din and Kleindienst v. Mandel and assess the broad scope of the injunction.
Update: This two-part series will be published as Josh Blackman, The 9th Circuit's Contrived Comedy of Errors in Washington v. Trump, 95 TEX. L. REV. SEE ALSO __ (Forthcoming 2017). A draft can be downloaded from the Texas Law Review and SSRN.