I spent much of my working time yesterday reading a manuscript containing John Selden’s 1628 arguments before the House of Lords on habeas rights. Selden’s core argument is very simple: if individuals can be held by the king without legal remedy, then every subject in the realm has been deprived of “liberty of person.” As Selden’s list of precedents in his speech makes clear, this was already old news to judges by the time he was delivering his address. But the argument had to be made, and made forcefully, in the face of an over-reaching king whose authoritarianism would run roughshod over the nation’s constitutional traditions.
How little things have changed. Perhaps most striking in the legal battle over Trump’s entry ban are the sweeping arguments for executive power made by the government’s lawyers. In the oral arguments before the Ninth Circuit Court of Appeals’ three-judge panel, one judge after the next is gobsmacked by the government’s refusal to offer evidence of the threats to national security to which the Executive Order purports to respond. The government refused to say much of anything beyond what is stated in the text of the order itself, that foreign-born nationals have been known to commit crimes, and that adverse conditions in the seven countries affected create security problems. When pressed by the judges as to the perceived insufficiency of measures Congress had already taken to stiffen visa requirements for these countries’ nationals, the government argued that the president determined that there remained a grave risk. Pressed further still on why no evidence of such a risk had been presented, the government could only argue that ultimately the executive is the branch of government entrusted with national security, and that its determinations on such matters are not reviewable by the courts.
And there it is: the Trump Doctrine, by which the executive can simply shout an emergency into existence and trample upon all law in putting out its imaginary fires. The judges were unpersuaded, and pointed out in their decision that the Supreme Court has already demolished this view in the context of the war on terror. The political branches, in the memorable words of Boumediene v. Bush (2008), do not have “the power to switch the Constitution on or off at will.” And in Holder v. Humanitarian Law Project (2010), the Court similarly declares that its “precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role,” though the decision concedes that the courts have limited ability to collect evidence and draw factual inferences in these areas.
But in this case the government showed no sign of competence in collecting evidence and drawing factual inferences, and still sought broad deference from the courts. Even the sweeping power granted to the executive in the statute on which the Executive Order leans suggests the president must evaluate facts rather than chase after chimeras: “Whenever the President finds that the entry of aliens or of any class of aliens… would be detrimental to the interests of the United States”(8 USC 1182(f)). It is not when the President “sees, or dreams he sees,” but when the President “finds,” implying a conclusion founded on evidence weighed in some form of deliberative process. (Like Benjamin Wittes at Lawfare, I am surprised that this statute did not receive mention, but don’t think that places this particular decision on unsteady ground.)
In the absence of fact or rationale justifying the Executive Order, the Court of Appeals did not object to considering as relevant Trump’s campaign language on banning Muslims. Writing for the Washington Post Eugene Kontorovich works himself into a tizzy on this point, arguing that it is ludicrous and unconstitutional for the courts to expect the words of a campaigning politician to have any substance. This misses the point. An executive order does not emerge from a legislative body, with its public debates, motions, and revisions, all of which allow the courts to assay an understanding of legislative intent. In the absence of all that stuff, and in the absence of any kind of justification from the executive itself, what has the court to go on? To exclude Trump’s own words from consideration would be to allow the executive to go unchecked in its refusal to justify its decisionmaking and submit its actions to judicial review. The Ninth Circuit, it is worth emphasizing, simply declined to consider whether this Executive Order is the promised “Muslim ban” at this early stage of proceedings. The effect is to pressure the government to come up with a more detailed narrative as it develops its position.
So there is a strong rebuff here to the view that the executive need only whisper the words “national security” to place itself above the law. That’s the easy part. The due process question will become much trickier as we go, especially for refugees and holders of non-immigrant visas. The Due Process Clause of the Fifth Amendment, the Ninth Circuit finds, applies to all persons within the United States and to certain classes of aliens seeking reentry. But much will turn in the coming months and years on just what “due process” means for various classes of aliens. The courts certainly will not find that every person in the world has a right to be heard before an Article 3 federal court. The language of the Ninth Circuit’s decision suggests as much in describing a basic due process standard as “notice and a hearing prior to restricting an individual’s ability to travel.”
So even if the Trump Administration loses the battle over the entry ban, which was always intended to be a short-term measure, it might still make significant gains in the coming war over the “extreme vetting” promised in the presidential campaign and anticipated in the text of the order itself. The due process rights of several classes of aliens will likely be the subject of a protracted back-and-forth between the courts and the executive, and the courts will be limited in the extent to which they can force the political branches to implement fair, efficient, and transparent procedures.
We should also temper our impulse to celebrate this blow to Trump’s entry ban by remembering that we still have not seen a full trial. One assumes that when this does go to trial the government’s lawyers will not be so comically inept as they were before the Ninth Circuit judges. And though one federal court of appeals has now clearly signaled its sympathies, if this gets fast-tracked to the Supreme Court, that bench has a special affinity for reversing decisions of the Ninth Circuit—the Supreme Court reversed 80% of the Ninth Circuit decisions it heard in its 2015 term, 62% of those heard in its 2014 term, 92% of those heard in its 2013 term (see statistics here). Sheer probability suggests that the Supreme Court will not see things exactly as the Ninth Circuit has done.
As someone who teaches in a public university, I cannot conclude without noting the special role that state higher education had in these proceedings. To establish standing to sue the federal government, the states of Washington and Minnesota had to prove that the order had caused them harm. And the harm that the court found compelling was the “concrete and particularized injury to their public universities,” a branch of state government that depends upon international faculty and students, many of whom are nationals of the seven countries in question. Indeed a doctoral student at my own institution who happens to be an Iranian national, Saira Rafiee, had her studies, and her life, dramatically disrupted because she was denied entry to the United States on January 27. In the very brief time that it was in effect, this entry ban created many such stories. The harm done to universities is not a legal fiction conveniently propping up the states’ case. It is real. And it is but one way in which innocent people making positive contributions to American society have been unduly detained, harassed, and humiliated by this execrable order.