Why the 9th Circuit Order Was Wrong, and What Trump Should Do About It

At Defining Ideas, Michael McConnell, a former federal appellate judge and now a distinguished professor at Stanford Law School, addresses the 9th Circuit panel’s decision denying the Trump administration’s motion for an emergency stay, and finds it wanting. Michael makes the same point I made here, but he makes it better:

The Ninth Circuit did not hold that aliens abroad who do not presently hold visas or green cards have any constitutional right to travel to the United States. That is the vast majority of applications of the executive order. The court spent several paragraphs explaining why the Order cannot constitutionally be applied to green card holders. But the Administration says the executive order never properly applied to green card holders, and after initial confusion about that question, has not applied it to them. In court, the government also conceded the Order could not apply to previously admitted aliens temporarily abroad. The Ninth Circuit panel stated that in addition to these two classes, the Order might also be unconstitutional as applied to unlawful aliens now inside the country and to some other aliens with close relations to U.S. citizens.

Even assuming the court is right about all four groups (which is far from certain), the fact remains that the Order is constitutional with respect to the vast majority of its applications. Thus, the temporary restraining order (TRO) halting the Order in its entirety is improper. The Ninth Circuit did not dispute that the TRO is overbroad. The court refused to narrow the TRO solely because the government’s concessions did not extend to two of the four classes the court thinks might be entitled to protection: “There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.” That is no reason not to narrow the TRO with respect to all the many applications to which the Order is plainly constitutional.

The court then said: “More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.” That is precisely backwards. If the State of Washington’s case is a facial challenge, the existence of a nontrivial number of constitutional applications is reason to reject the challenge. If the State of Washington’s case is an as-applied challenge, relief must be confined to those applications that are unconstitutional. The cases are not precisely parallel, but it bears mention that when the Supreme Court found the Obamacare statute unconstitutional in some but not all respects, it went out of its way to preserve the rest.

The 9th Circuit order did not challenge the blindingly obvious fact–8 U.S.C. § 1182(f)–that the president can, by order, suspend the entry of “any class of aliens” into the United States.

So the 9th Circuit decision was wrong. Where does the Trump administration go from here? McConnell suggests that the administration should start over:

The smartest move by the Administration is to revise the executive order to make clear that it only applies to unadmitted and nonresident aliens, who the Supreme Court has stated have “no constitutional right of entry to this country as a nonimmigrant or otherwise.” That would render the due process holding of the court, which was the only issue reached, moot. I fear that slogging forward in the Court of Appeals, before the same panel, is unlikely to be successful, and that returning to the district court will lead to endless battles over executive privilege, in which the Administration will take the same position any executive would take, but which will be treated as uniquely Trumpian defiance of judicial authority. Better to correct the Order and start afresh, with organized implementation and full public explanation.

I think that is correct. I would only add that it makes sense to break the original order down into several separate orders. This will make it more difficult for courts to obfuscate the issues, as the 9th Circuit panel did. The most important order–suspending immigration, including refugees, from the seven specified countries–is also the most legally unquestionable. Why not make that a separate order? Or perhaps two orders, with refugees treated separately from other classes of immigrants.

Where Trump got into trouble was the travel ban. This was the most problematic part of his original order, because it swept up all the sympathetic and legally questionable cases: the resident alien who is temporarily outside the country, the Iranian professor who has a contract to teach at MIT, and so on.

Frankly, I see little or no need for a travel ban, separate and distinct from the suspension of immigration. Trump could abandon that part of the plan entirely, but at a minimum he should put it in a separate order so that it cannot willfully be confused with the more important suspension of immigration.

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