By Tyler O’Neil
Five judges of the U.S. 9th Circuit Court of Appeals went out of their way to denounce the “fundamental errors” in the February decision of a three-judge panel which effectively stopped President Donald Trump’s first executive order temporarily halting immigration from seven Muslim-majority countries, attacked as a “Muslim Ban.” The five judges denounced the panel’s ruling as a “clear misstatement of law,” and argued that they had an “obligation to correct” it for the record.
“We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress,” the judges declared. They argued that the panel’s February ruling constituted clear judicial activism which undermined the separation of powers.
The three-judge panel — Judges William C. Canby Jr (a Carter appointee), Richard R. Clifton (a George W. Bush appointee), and Michelle Friedland (an Obama appointee) — unanimously denied the Trump administration’s motion to throw out a federal judge’s temporary restraining order on the executive order.
Judge Jay Bybee (a George W. Bush appointee) wrote the scathing rebuke of their ruling, joined by Reagan appointee Alex Kozinski and George W. Bush appointees Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta. Bybee’s dissent followed the arguments of a Boston judge who ruled for Trump’s order and other critics of the prior panel decision, including liberal law professors and writers Jonathan Turley, Alan Dershowitz, and Jeffrey Toobin.
Bybee argued that the original panel “neglected or overlooked critical cases by the Supreme Court and by our making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgement of the political branches.”
Citing case after case demonstrating the limits of judicial review over immigration actions, Bybee declared that the 3-judge “panel’s errors are many and obvious,” so much so that “the panel’s clear misstatement of law justifies vacating the opinion.”
The key case suggesting that the original panel should have ruled against the temporary restraining order is the 1972 Supreme Court case Kleindienst v. Mandel. In that case, the Court ruled that a U.S. attorney general (in this case Richard Kleindienst) has the right to refuse an alien’s entry into the United States, since he has been empowered to do so in the Immigration and Nationality Act of 1952.
Mandel established the principle that “when the Executive exercises ‘immigration authority’ on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.”
The 3-judge panel dismissed the precedent of this case because the person in question was not the attorney general but the president. Bybee attacked this logic, asking, “We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision?” He added that “if the panel is correct, it just wiped out any principle of deference to the executive.”
Although Bybee cited a great deal of cases referencing and applying the Mandel standard, perhaps the most pertinent involved the National Security Entry-Exit Registration System, a program instituted following the September 11, 2001 attacks which required non-immigrant alien males over the age of 16 from 25 countries (24 Muslim-majorty countries and North Korea) to appear for registration and fingerprinting.
One court ruled that the program constituted unconstitutional discrimination against these men due to “their religion, ethnicity, gender, and race,” and that the program “was motivated by an improper animus toward Muslims.” Nevertheless, the 2nd Circuit Court of Appeals rejected this argument, because the program had “a facially legitimate and bona fide reason,” since the countries were “selected on the basis of national security criteria.”
Scathingly, Bybee declared that “the panel was oblivious to this important history.”
Finally, the five judges applied the Mandel standard to Trump’s original executive order. “The Executive Order was easily ‘facially legitimate’ and supported by a ‘bona fide reason,'” because the order noted that the seven countries “had all been previously identified by either Congress, the Secretary of State, or the Secretary of Homeland Security (all in prior administrations) as ‘countries or areas of concern’ because of terrorist activity.”
Bybee added that “even if we have questions about the basis for the President’s ultimate findings — whether it was a ‘Muslim ban’ or something else — we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.”
The five judges ended their rebuke of the three-judge panel with a basic civics lesson, which is worth quoting in full.
We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security agains the real suffering of potential emigres.
As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy.
For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches — and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.
This is an exceedingly important lesson. Far too many people — on the Left and the Right — cheered the illegal blocking of Trump’s executive order, when the president had the authority to issue it. Elections have consequences, and the other branches of government must respect the separation of powers.
Whether or not Americans supported Trump’s order, he had the constitutional authority to make it, and if he acted wrongly, appropriate censure should come from Congress and from the people in elections, not the judicial branch. This dissent is important, because it sets the record straight on this key constitutional issue.