The Ninth Circuit’s ruling — limited in impact but full of mischief

Dan McLaughlin at NRO has written a good analysis of the Ninth Circuit’s ruling against the Trump administration’s travel ban. His analysis is comprehensive. In this post, I will quote what I consider the most significant portion:

[T]he court found that the government was not likely to win its case – the standard on a preliminary injunction, before all the evidence has been heard – on whether the executive order gave adequate due process protections to “lawful permanent residents and non-immigrant visaholders” who were barred from the country. . .ignoring the fact that the Administration has stopped enforcing the order against lawful permanent residents and the fact that the states were also looking to enforce the injunction on behalf of refugees and others who had yet to be granted visas.

The Supreme Court, in its 2015 decision in Kerry v. Din, left open the question of whether there is any due process right for foreign nationals to challenge the denial of a visa; Justices Scalia, Thomas and Chief Justice Roberts thought not, and in that case, Justices Kennedy and Alito didn’t take a position on the issue because they found that adequate due process had been provided in that case. But the Ninth Circuit never addressed why people without an existing visa might have due process rights.

The court did, however, rely on the Court’s 2001 decision in Zadvydas v. Davis, a 5-4 opinion written by Justice Breyer, which held that people charged with being illegally in the U.S. have a right to due process to challenge that before being deported. But nothing in Zadvydas would extend rights to people denied entry, and the Ninth Circuit simply concluded that if its order was too broad, it was up to the White House to write a narrower one – an opportunity that I would seize upon swiftly, if I was advising President Trump. . . .

That said, it’s notable that when portions of Obamacare were found to be unlawful, the Supreme Court bent over backwards to let the remaining portions stand. Trump gets no such treatment.

(Emphasis added)
McLaughlin also considers the panel’s treatment of the claim that the administration’s order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. The panel found this argument raises “serious allegations and present significant constitutional questions.” It cited statements made by Donald Trump when he was running for president. However, the panel “reserve[d] consideration of these claims until the merits of this appeal have been fully briefed.”

The panel’s reliance on campaign statements as evidence of intent is unprecedented and, in my view, outrageous. Eugene Kontorovich at the Volokh Conspiracy explains why:

The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.

Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained, even looking at such statements would “chill debate during campaign[s].” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).

There are sound policy reasons for ignoring campaign statements or promises to shed light on subsequent official action. For one, campaign promises are often insincere, designed to appeal to voters. Indeed, they are explicitly instrumental, and their goal is not policy outputs, but election. Moreover, implemented laws or policies are often substantially different from promises, as is the case here. . . .

More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.

Moreover, the Constitution’s oft-forgotten opinion clause supports disregarding pre-inauguration statements. The Constitution puts at the president’s service the officials of the administration and requires they advise him as asked. What it means here is that the president must be seen as the unitary head of the executive branch and the pinnacle of a process of executive decision-making. That process is the only constitutionally recognized executive process. A candidate’s possible plans or promises are not part of the process.

The panel’s opinion may be limited in impact; I agree that it is. Yet, it contains plenty of serious mischief, as I believe McLaughlin and Kontorovich demonstrate.

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