Overstepping Authority: 9th Circuit Judges Substitute Their Policy Preferences for Trump’s

Herbert W. Titus and William J. Olson | February 10, 2017 | 2:34pm EST
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President Donald Trump speaks in the Roosevelt Room of the White House in Washington. (AP Photo/Pablo Martinez Monsivais)

Late yesterday, the three-judge motions panel of the Ninth Circuit, in a per curiam order, denied the federal government’s motion to stay the Temporary Restraining Order issued by a single district court judge from Washington State enjoining enforcement nationwide of President Trump’s Executive Order on immigration and refugees.  Primarily in contention were two provisions of the Executive Order: (i) suspending for 90 days the entry of aliens from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) and (ii) suspending for 120 days the United States Refugee Admission Program. 

Although the policy underlying the President’s Executive Order always is debatable in the public arena, the basic question before the Courts is whether the Executive Order is lawful — that is, does the President have statutory, and Constitutional, unreviewable authority to issue it.  That issue was conveniently overlooked by the Courts, who, yet again, preferred to impose their own policy preferences under the guise of a judicial order. 

Executive Order.  Certainly, it would have been better crafted if the Executive Order had expressly excluded lawful permanent residents, rather than relying on a clarification issued by White House Counsel on that point.  And it would have been better if the Executive Order had set out additional information about the threat of terrorism from the seven countries and refugees in general.  However, those omissions did not make the exercise of presidential discretion reviewable by the federal court. 

After all, as Justice Robert Jackson taught us in his concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952):  when a President acts pursuant to express Congressional authority, as here, his power is at its zenith.  All that should have been required by the Court was the invocation of the statutory authority for the President’s actions giving him unbridled and unreviewable discretion.  At that point, the Court’s role was done.  It had no judicial authority to do what it did. 

Oral Argument.  The quality of advocacy for the United States has been challenged by many commentators — but we think that criticism misses the mark.  The Justice Department attorney set out an argument that was fully sufficient to justify the President’s actions, and the Court certainly had before it all that it needed to decide the case properly.  However, like many other modern federal judges who believe that they sit as super-legislators, these judges pressed government counsel to present to them the specific basis for the President’s decision, so that they could “rule” as to whether it was sufficient.  Since the President made his decision after receiving information received from throughout the defense and intelligence communities, the court had no right to review his exercise of discretion.

Amicus Curiae Briefs.  It was apparent that the lawyers developing the case for Washington and Minnesota, and their friends in the open borders community, were active in getting support from a variety of amici curiae technology companies as well as other States.  In such cases, the advantage always goes to the party who is initiating the challenge.  No Republican state Governor or Attorney General filed an amicus brief supporting the President.  In fact, we filed one of only three amicus briefs supporting the President’s Executive Order, ours being filed on behalf of the United States Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center.

Our brief focused on two issues:  the President’s statutory authority to suspend or even bar entry into the United States of any alien or group of aliens, demonstrating that his power has never been successfully challenged — and often has never been challenged at all.  Secondly, our brief demonstrated the flaws in the vetting process for refugees, citing a report done by the Obama Department of Homeland Security.  Neither of these matters were addressed even in passing by the panel. 

Standing.  Plaintiff States of Washington and Minneapolis claimed to have standing because they were acting parens patriae for its citizens — an approach that has been repeatedly rejected by federal Courts — and the panel declined to find standing on that basis.

The Plaintiff States also asserted a violation of the Establishment Clause, where the federal courts have virtually automatically found standing by any plaintiff making any accusation, but the panel declined to rely on that ground as well. 

Rather, the panel relied on the “proprietary” interests of the States in that they operate state facilities such as universities which would be affected.  According to the panel, however, the States have standing to contest the legality and constitutionality of the Trump order because their respective universities “have a mission of ‘global engagement’ and rely on ... visiting students, scholars, and faculty to advance their educational goals,” and the Trump order interferes with their travel plans.  In other word, the States are claiming, as a legal right, that its global educational policies override the nation’s interest in protecting her people from the threat of terrorism. 

Truly, neither State brought a claim of its own, but only (at best) the claim of another.   According to declarations filed by the States, two “visiting scholars” and “three prospective employees” — all of whom are subject to the Executive Order will not be able to come to Seattle, Washington.  But do they have a legal claim to enter the country?  There is nothing in the panel opinion indicating that they have anything but a unilateral expectation, not a right, to enter the United States.  Thus, even those individuals do not have standing: they have suffered no legal injury.

Immigration Suspension.  The 90-day suspension was made by the President pursuant to 8 U.S.C. Section 1182(f) which states:

“Whenever the President finds that the entry of any aliens, or 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 that he deems appropriate.  [Emphasis added.]

Astonishingly, the panel opinion never even referenced this source of the President’s statutory authority.

Animus.  One of the most dangerous “judge-empowering” doctrines that has snuck its way into Fake Constitutional Jurisprudence is the notion of animus.  Made popular by Roemer v. Evans, 517 U.S. 620 (1996), this doctrine allows any federal judge to assert moral superiority to legislators, citizens who pass referenda, or even Presidents, and find that they had some “improper” motivation, which authorizes the court to substitute its pure judgment for the “hateful” judgment of legislators, voters, or executive branch officials. 

Here, the panel presumed that President Trump was motivated by animus against Moslems, wholly ignoring the obvious fact that Islamic Terrorism is inexorably linked to Islam.  And Islam is not just a religion, but also a political system — which denies the authority of a constitutional republic to establish laws that apply to all who reside in the country.

But the judges could have believed that Islam is a religion of peace, and it still should have upheld the Executive Order.  The seven countries targeted by the ban had been previously identified as associated with a heightened risk of terrorism pursuant to 8 U.S.C. Section 1187(a)(12), and were thus already excluded from the visa waiver program because of international terrorists threats posed by those nations.

Nevertheless, Section c(g) of Trump’s Executive Order allowed for entry on a case-by-case basis.  Although the panel questioned the efficacy of the White House Counsel’s clarification of the Executive Order that it did not apply to immigrants admitted with the privilege of residing permanently in the United States, that already was provided for by 8 U.S.C. Section 1101(a)(20).

The panel decision asserts that no aliens from the seven named countries have engaged in acts of terrorism — presumably based on the judge’s reading of the newspapers, and the fact that the Justice Department did not introduce into the record information that the Administration released publicly during the pendency of the litigation, about threats from individuals from those countries.

Refugee Suspension.  The 120-day suspension in the refugee program was made pursuant to the President’s power to oversee that program under 8 U.S.C. Section 1157(a).  The number of refugees that may enter the country is set by statute, and may not exceed 50,000, “unless the President ‘determines’ — before the beginning of the fiscal year, and only after ‘appropriate consultation’ with cabinet-level representatives of the President and members of the Committees on the Judiciary of the Senate and the House — that the proposed number of refugees is “justified by humanitarian concerns ... or is otherwise in the national interest.”  8 U.S.C. Section 1157(d)-(e).

The District Court order included no careful analysis of either the EO or its statutory underpinning.  The District Judge granted the plaintiff States request for a TRO on the generalized finding that the States were “likely” to prevail on the merits, that the EO was unlawful, providing no analysis or authority for that conclusion.  Although we have seen orders denying relief with such cursory treatment of issues, we cannot recall reading an order imposing a TRO without a careful analysis. 

Shifting Burden on Appeal.  On appeal to the Ninth Circuit for a stay of that TRO, the burden shifted from the States having to demonstrate the likelihood of winning on the merits to the federal government having to prove that it was likely to prevail on the merits.  To that end, the federal government submitted to the court of appeals the claim that, first of all, what President Trump had done was authorized by statute, and second, that the President’s actions did not violate the Constitution, as claimed by the Plaintiff States.

The threshold questions for the court should have been (i) whether President Trump’s action was authorized by Congress, and (ii) whether that the statutes conferred unreviewable authority to suspend the admission of any class of aliens and the ongoing screening refugee process.  Yet it never addressed either issue. 

Instead, the three-judge panel created a strawman by mischaracterizing the federal government’s claim to be 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 procedure.”  By posing this broad question, the panel lumped the President’s action to “suspend” for a limited period of time to protect the national interest, with “all executive exercises of immigration authority”:

“The present case ... is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application.  Rather, the States are challenging the President’s promulgation of sweeping immigration policy.”

If that were truly the case, then one wonders whether the matter before the courts constitutes a “case” or “controversy” and within the power of the judiciary — or whether the States of Washington and Minnesota should take their beef to Congress. 

Throughout the panel opinion, the court insists that it has jurisdiction to determine whether the constitutional rights of persons affected by the EO have been violated and that the federal government has failed to demonstrate that it will prevail against those claims. 

First, the panel insists that “[t]he Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”  (Emphasis added.)  But the panel utterly fails to acknowledge that the due process principles of notice and a hearing are not triggered unless and until the person demonstrates that his desire to travel into the United States is a “liberty or property” interest within the meaning of the due process guarantee.  As Judge Gorton of the United States District Court for the District of Massachusetts has ruled in denying injunctive relief — there is “no constitutionally protected interest in either obtaining or continuing to possess a visa.”  Indeed, as Judge Gorton also has observed, “a non-citizen has no ‘inherent property right in an immigrant visa.’”  Thus, he concludes, such a person has no due process rights.

Second, the panel makes a similar mistake in assessing the likelihood of the federal government showing that the Executive Order unconstitutionally constitutes religious discrimination.  The panel fails to lay down a predicate that “disfavoring Muslims” from seven named countries discriminates on the basis of religious faith — not nationality.  With respect to the President’s power to exclude aliens, there is nothing unconstitutional about a law or ruling based upon a person’s nationality.  Singling out seven predominantly Moslem nations, as the Executive Order does here, is a classic example of the use of a “Muslim ban” based on nationality, not on religious faith.   However, even if the Executive Order barred entry to the country by alien Muslims as a class, we have been unable to find a single reported federal court decision under 8 U.S.C. Section 1182(f) which supports the proposition that such a determination would be impermissible under federal law.

Additionally, there is nothing in either the Establishment Clause, the Free Exercise Clause, or the equal protection guarantee that prohibits the special concern for Christians who are being persecuted in Moslem countries and, therefore, given special consideration in the nation’s refugee program.  After all, religious persecution is one of the grounds upon which a person may be eligible for refugee status, and the Executive Order does not close the door to affording similar protection of people of different religious faiths. 

From the time that the district judge entered his TRO to the day that the Ninth Circuit Motions Panel ruled, this conflict has sharply divided the country, eliciting emotional reactions galore — the most notable of which was President Trump referring to the district judge as a “so-called judge.”  The President’s characterization may be crude, but it reflects the views of ordinary Americans who are fed up with a ruling class which thinks it knows better than anyone else how we should live our lives. 

Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  Bill Olson served in three positions in the Reagan administration. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C., Vienna, Virginia.  E-mail, visit, or follow


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