The Ninth Circuit Ignores Precedent and Threatens National Security

Under its ruling, a state university could go to court on behalf of any alien, anywhere.

By
David B. Rivkin Jr. and Lee A. Casey

Feb. 10, 2017

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States.” Numerous presidents have used this authority to suspend entry of aliens from specific countries.Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.” In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): “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.” That point the Ninth Circuit ignored entirely.The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible.
President Obama chose to toughen vetting standards for these countries’ nationals rather than bar their entry completely. But if Mr. Trump has a different view of the threat, it is not up to the courts to decide who is right. This is a classic example of a nonjusticiable “political question,” involving matters constitutionally vested in the president and Congress.
Judges—were they adjudicating a suit brought by a party with standing—could overturn the president’s order if it entailed clear violations of due process or equal protection. But attempting to discern Mr. Trump’s motivation in selecting these countries exceeds the judiciary’s proper constitutional role. Judges scrutinize government motives in the domestic context, if presented with allegations that facially neutral governmental action is motivated by invidious discrimination. That inquiry is inappropriate in the foreign-policy sphere.
Under the Constitution and the Supreme Court’s precedent, the judiciary is institutionally incapable of analyzing the complicated matrix for foreign-policy determinations that support such actions. Judges lack access—or any right to demand access—to the full range of information, classified and otherwise, available to the president. They also lack the political accountability that would support taking risks with the security of the American people.
The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

Messrs. Rivkin and Casey practice constitutional and appellate law in Washington and served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations.

The travel moratorium: A hopeless disaster

Stupid but legal. Such is the Trump administration’s travel ban for people from seven Muslim countries.

By Charles Krauthammer

February 10, 2017

Of course, as with almost everything in American life, what should be a policy or even a moral issue becomes a legal one. The judicial challenge should have been given short shrift, since the presidential grant of authority to exclude the entry of aliens is extremely wide and statutorily clear. The judge who issued the temporary restraining order never even made a case for its illegality.
The 9th Circuit Court of Appeals has indeed ruled against the immigration ban, but even if the ban is ultimately vindicated in the courts (as is likely), that doesn’t change the fact that it makes for lousy policy. It began life as a barstool eruption after the San Bernardino massacre when Donald Trump proposed a total ban on Muslims entering the country “until our country’s representatives can figure out what the hell is going on.” Rudy Giuliani says he was tasked with cleaning up this idea. Hence the executive order suspending entry of citizens from the seven countries while the vetting process is reviewed and tightened.
The core idea makes sense. These are failed, essentially ungovernable states (except for Iran) where reliable data is hard to find. But the moratorium was unnecessary and damaging. Its only purpose was to fulfill an ill-considered campaign promise.
It caused enormous disruption without making us any safer. What was the emergency that compelled us to turn away people with already approved visas for entry to the United States?
President Trump said he didn’t want to give any warning. Otherwise, he tweeted, “the ‘bad’ would rush into our country. . . . A lot of bad ‘dudes’ out there!”
Rush? Not a single American has ever been killed in a terror attack in this country by a citizen from the notorious seven. The killers have come from countries that are not listed — Egypt, Saudi Arabia, the UAE, Lebanon, Pakistan and Kyrgyzstan (the Tsarnaev brothers). The notion that we had to act immediately because hordes of jihadists in these seven countries were about to board airplanes to blow up Americans is absurd.
Vetting standards could easily have been revised and tightened without the moratorium and its attendant disruptions, stupidities, random cruelties and well-deserved bad press.
The moratorium turned into a distillation of the worst aspects of our current airport-security system, which everyone knows to be 95 percent pantomime. The pat-down of the 80-year-old grandmother does nothing to make us safer. Its purpose is to give the illusion of doing something. Similarly, during the brief Trump moratorium, a cavalcade of innocent and indeed sympathetic characters — graduate students, separated family members, returning doctors and scientists — were denied entry. You saw this and said to yourself: We are protecting ourselves from these ?
If anything, the spectacle served to undermine Trump’s case for extreme vigilance and wariness of foreigners entering the United States. There is already empirical evidence. A Nov. 23 Quinnipiac poll found a six-point majority in favor of “suspending immigration from ‘terror prone’ regions”; a Feb. 7 poll found a six-point majority against . The same poll found a whopping 44-point majority opposed to “suspending all immigration of Syrian refugees to the U.S. indefinitely.”
Then there is the opportunity cost of the whole debacle. It risks alienating the leaders of even nonaffected Muslim countries — the 57-member Organization of Islamic Cooperation expressed “grave concern” — which may deter us from taking far more real and effective anti-terror measures. The administration was intent on declaring the Muslim Brotherhood a terrorist organization, a concrete measure that would hamper the operations of a global Islamist force. In the current atmosphere, however, that declaration is reportedly being delayed and rethought.
Add to that the costs of the ill-prepared, unvetted, sloppy rollout. Consider the discordant, hostile message sent to loyal law-abiding Muslim Americans by the initial denial of entry to green-card holders. And the ripple effect of the initial denial of entry to those Iraqis who risked everything to help us in our war effort. In future conflicts, this will inevitably weigh upon local Muslims deciding whether to join and help our side. Actions have consequences.
In the end, what was meant to be a piece of promise-keeping, tough-on-terror symbolism has become an oxygen-consuming distraction. This is a young administration with a transformative agenda to enact. At a time when it should be pushing and promoting deregulation, tax reform and health-care transformation, it has steered itself into a pointless cul-de-sac — where even winning is losing.

Charles Krauthammer writes a weekly political column that runs on Fridays. He is also a Fox News commentator and appears nightly on “Special Report with Bret Baier.”