I can’t say I had my heart in it, but I have served my sentence for disseminating what I believe to be the deleted Schumer tweet hoax. I sentenced myself to review last week’s developments in Trumplaw. I’m not sure the punishment fit the crime, but here are my brief and not entirely serious notes on the three appellate decisions that addressed key Trump administration issues.
The Ninth Circuit strikes again. The slip opinion lists three pages of lawyers and attorneys general attacking the Trump administration, including Minnesota’s own Keith Ellison. Everyone who is anyone in the world of the #Resistance wants a piece of the action in this case.
The three-judge panel appears to be mightily impressed with its own handiwork. The 66-page slip opinion comes with an 8-page summary. The court formulates the question before it as whether the administration can “strip asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry.” It holds that the administration’s policy fails to comport with the Immigration and Nationality Act. Judge Paez may have been gilding the lily when he drew on “principles of nonrefoulement” to support the result. Reading the panel opinion preliminarily enjoining the administration from enforcing its policy, one cannot help but be struck by the court’s devil-may-care attitude to the implicit national security issues.
This is an interesting and important decision, holding that the administration can withhold federal law enforcement funds from jurisdictions whose “sanctuary” policies conflict with the enforcement of federal immigration law (“we conclude that the plain language of the relevant statutes authorizes the Attorney General to impose the challenged conditions”). The challenged conditions are basic: (1) compliance with federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities; (2) the provision to federal authorities of the release dates of incarcerated illegal aliens upon request; and (3) affording federal immigration officers access to incarcerated illegal aliens.
This ruling has to be right. The court, however, acknowledges its divergence from other appellate court opinions that have upheld injunctions on the enforcement of some or all of the challenged conditions. See slip op. at page 8. It’s the kind of split in authority that supports the exercise of the Supreme Court’s power of discretionary review.
Paul Mirengoff pitched in to help me serve my sentence in his post “House lacks standing to enforce McGahn subpoena, appeals court rules.” The panel’s 2-1 opinion does not address the merits of the enforceability of the House Judiciary Committee’s subpoena of former White House counsel Don McGahn. Rather, the panel holds that the committee lacks standing to press the issue in court.
Without digging into the precedent that leads the court to this result, I can only say that I (like Paul, I think) am dubious about the outcome. The opinion seems to me to rest on a sort of discretionary reservation of authority based on a “political question” that inhibits judicial review. The concurring opinion by Judge Karen LeCraft Henderson seems to me to belie the gist of the result:
I emphasize that the applicability of specific privileges in this case is not yet susceptible to judicial resolution: none has been formally asserted and, in any event, we do not reach the merits because of the Committee’s lack of standing. I write separately, however, because I see qualified privileges as the preferred mechanism for resolving these interbranch informational disputes in the future. Even setting aside the shaky foundation of testimonial immunity, a categorical refusal to participate in congressional inquiries strikes a resounding blow to the system of compromise and accommodation that has governed these fights since the republic began. Political negotiations should be the first—and, it is hoped, only—recourse to resolve the competing and powerful interests of two coequal branches of government. And even if one is skeptical of this rosy projection, I believe the applicable privileges provide a narrower starting point and, should the parties reach an impasse, frame the issue in a manner more suitable—and, indeed, more familiar—to judicial resolution.
Jonathan Turley is beside himself with this result. His column on it appears under the headline “Congress hits rock bottom in losing to the president in subpoena ruling.” Professor Turley writes:
The D.C. Circuit Court sided with Trump in reversing a lower court and refusing to order the appearance before Congress of former White House counsel Donald McGahn. It is a huge victory for the White House in barring such testimony, and a devastating loss to the authority of Congress in future conflicts.
I disagree with the decision and believe not only that Congress has a right to hear from McGahn but that federal courts should protect that right. The decision undermines not only congressional authority but half of the House’s case against Trump based on its second impeachment article, obstruction of justice.
To the extent that I understand his argument, Professor Turley comes at the issue that Paul Mirengoff raises from another direction.
PAUL ADDS: Liberals have a clear majority on the D.C. Circuit. Thus, if the House files a petition for rehearing of the McGahn case, as I expect it will, there’s a fairly good chance the panel’s ruling will be overturned.