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“The opposite of poverty is not wealth; the opposite of poverty is justice."--Bryan Stevenson

Friday, February 10, 2017


I just listened to two journalists on "Washington Week" discuss the 9th Circuit ruling and how Trump can get around it with his next EO, because they had absolutely no idea what the legal basis for the court ruling was, so it was all about what Giuliani said or "national security" or something.

No; just:  no.

The court ruled on several key issues.  The first was due process:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause. 

Due process is fundamental Constitutional law.  Trump can't get around it with an EO, even when he screams "Lookie!  Over there!  Scary Mooslems!  Booga-booga!"  Unless his next order on immigration allows for due process "prior to restricting an individual's ability to travel," his ban falls again.

Anybody think his EO is going to take on the quality of a law, with explicit provisions spelling out how due process will be satisfied?

The other critical issue (set aside the argument that the ban violates the Establishment clause) is this:

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.
This is the so-called "rational basis" test.  The President can't outlaw a group just because he doesn't like them.  That's why laws which intend to discriminate on the basis of race are unconstitutional:  the courts don't recognize a "rational basis" for such laws.  Trump wants to re-write this failed EO.  How does he do that without "evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States"?  And given the White House itself couldn't compile such a list, what are the odds that it will come up with one now?

Except, of course, for the Bowling Green Massacre and the terrorist attacks in Atlanta.

And if he wants to impose "extreme vetting," as he says he does, he'll run into the same problems his first order created:  chaos in international travel, and in American businesses and universities (the states before the 9th Circuit got standing largely because of the injuries the travel ban inflicted on their universities, both faculty and students).  Due process will require he apply it to everyone.  Due process will also require he spell out clearly what is required.  Is he likely to do that?

Are pigs likely to fly?

ADDING:  There is also this bit, which Eric Posner picked up on:

And, to counter the argument made at Lawfare, from which I got that tweet, the 9th Circuit does implicitly argue about the application of this statutory language:

(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 
The President can't make that finding on the basis that he is the President, DAMMIT!  SEE YOU IN COURT!  There still has to be a rational basis for the finding.  As the 9th Circuit said, there's no rational basis because there's no evidence at all to support such a claimed finding.  Steve Bannon's ideas about the "Fourth Turning" don't count.

And there are still the questions of due process.  The courts don't need to get to the statute if the Administration can't get past the Constitution.

Back the drawing board, Mr. President.


Blogger rick allen said...

I actually read the ninth circuit opinion--something I rarely do these days--and was struck by the observation that the feds didn't even attempt to supply a rationale to support their national security claims. Apparently they hung everything on the claim that all actions regarding national security are "unreviewable."

So at first I thought that that was stupid, and then I thought that Trump's lawyers might have been sabataging him, and then I thought, "No, that's what he really wanted, a judicial declaration of a free hand. Then he could really go to town."

And having watched at least some of the pundits urging that "unreviewability" is indeed the standard, I pulled out my old "Transnational Legal Problems" casebook (being a book hoarder does occasionally pay off) and found old cases from mid-century stating the same principle central to the ninth circuit case, that, however deferential the legal standard might be, any conclusion that executive action is unreviewable utterly overturns the central constitutional imperative of checks and balances.

So I'm feeling kind of optimistic, not only because, so far, the angels are winning, but because this decision is fully defensible under existing law, thanks to the Executive's wanting too much.

10:28 PM  
Blogger trex said...

"So at first I thought that that was stupid, and then I thought that Trump's lawyers might have been sabataging him, and then I thought, "No, that's what he really wanted, a judicial declaration of a free hand. Then he could really go to town.""

I came to the same conclusion. There has been a lot of talk about this executive order being a "test" of the system to see how much power the fascists in the White House could accrue to themselves. Whether the the grab-bag EO was an intentional test toward that end or simply a stunning act of hubris hatched in secret without proper legal guidance ("Let's close the shipping lanes to Barbary pirates too, while we're at it!") it's cleared at the end the game, one way or another, is on fettered power.

And "unfettered" in this context means not constrained by law, morality, or reason.

11:13 PM  
Blogger trex said...

Sorry, dictation issues compounded by lack of editing.

'It's clear that the end the game, one way or another, is unfettered power" is how the end of the penultimate sentence should read.

11:15 PM  
Blogger Rmj said...

Thanks. It simply seemed nuts to me,and my legal analysis skills are so rusty I wasn't certain of them.

8:50 AM  

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