The Ninth Circuit’s Power Grab

National Review Online

Friday, February 10, 2017

The Ninth Circuit’s decision against President Trump’s immigration order is worse than wrong. It is dangerous.

To review, Trump issued an executive order blocking entry by refugees and aliens from seven Muslim-majority countries. The travel restriction is to be short-lived: a period of months while better vetting procedures are developed. The administration, moreover, did not pluck the seven countries from its allegedly anti-Muslim imagination. They were cited in a statute enacted by Congress and signed by President Obama, based on the richly supported conclusion that these countries — Iran, Iraq, Syria, Yemen, Libya, Somalia, and Sudan — are riven by anti-American jihadism, besides having governments that are either non-functional or implacably hostile to the U.S., rendering any efforts to screen their citizens uniquely difficult.

A federal judge in Seattle, James Robart, issued a temporary restraining order against the travel ban at the behest of two states, Washington and Minnesota, run by Democratic governors. Now, the Ninth Circuit has upheld this single, unelected jurist’s usurpation of the power to make American national-security policy.

According to the three-judge panel, even illegal aliens, to say nothing of aliens holding non-immigrant visas or permanent-resident status, have due-process rights against government actions to protect Americans from foreign threats. Therefore, the president and Congress (i.e., the branches of government constitutionally responsible for national security) may not take such actions unless and until the judiciary (the branch with no such responsibility) has approved those actions.

That aliens are not citizens and have no constitutional right to come to the United States is apparently superseded by their newfangled “right” to be welcomed into the United States courts. And even if they are not here already, even if they remain in the far reaches of the globe, this alien “right” may be asserted by state governments. The states’ interest in having foreign students and scholars at their public universities, we are told, outweighs the public’s interest in excluding aliens who may be terrorists, law-breakers, public charges, or hostile to our Constitution and culture.

The unanimous ruling is the type of lunacy with which the Ninth Circuit has become synonymous. It is also the inevitable result of a turn-of-the-century judicial power grab in the realm of national security.

Writing for the Supreme Court in 1948 (in Chicago & Southern Air Lines v. Waterman), Justice Robert Jackson — FDR’s former attorney general and the chief prosecutor at Nuremburg — explained that decisions involving foreign policy, including alien threats to national security, are “political, not judicial” in nature. Thus, they are

wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

It is bygone wisdom. The modern judiciary, and the modern Left whose water it carries, holds that no aspect of governance evades supervision by unelected federal judges. The full flower of this new thinking was revealed in Boumediene v. Bush, the 2008 Supreme Court decision on which the Ninth Circuit centrally relies. Boumediene radically altered the separation-of-powers doctrine on which our Constitution is founded.

For the preceding two-plus centuries, the doctrine meant that each branch of the central government respected the Constitution’s delegations of supreme authority over different subject matters to its peer branches: the power of the political branches to conduct foreign relations, repel foreign invasions, and prescribe the conditions under which aliens may be admitted to and remain in the United States was every bit as plenary as the judiciary’s power to decide a breach-of-contract claim or issue a search warrant.

With this understanding of the judiciary’s lack of power and institutional competence in national-security matters, the Congress enacted the 1952 law on which President Trump expressly relied. This provision, now codified at Section 1182(f) of federal immigration law, authorizes the president “by proclamation” to exclude classes of aliens whose admission would “in his judgment” — meaning: not subject to the judiciary’s judgment — be detrimental to the United States.

Under the Constitution’s conception of separation of powers, this is the pinnacle of lawful executive power: an area in which (a) the president has a reservoir of his own foreign-affairs authority; (b) the Congress, responsible for prescribing the terms under which aliens may be admitted, has vested the president with maximum statutory authority; and (c) there is no legitimate judicial oversight role.

Alas, Boumediene turned separation of powers on its head. Writing for himself and the Supreme Court’s liberal bloc, Justice Anthony Kennedy announced that, henceforth, the legitimacy of presidential or congressional power depends not on the Constitution but on the judiciary’s interpretation of the Constitution. Translation: There is no subject matter on which judges do not have the last word. This radical new theory led to Boumediene’s radical conclusion: Alien enemy combatants — foreigners whose only contact with the United States is to levy war against her — somehow have a constitutional right to challenge in federal court the commander-in-chief’s congressionally endorsed decision to detain them in wartime.

A more restrained court would limit Boumediene to its sui generis facts. Not the Ninth Circuit. For the California-based appellate court, Boumediene paved the way for an even haughtier decree that, in a time of profound national-security threat, the president — despite a sweeping authorization from Congress — is powerless to exclude aliens from the United States absent judicial imprimatur.

Because the travel ban was announced without warning on a Friday, the court was offended by the Trump administration’s haphazard implementation of the executive order. It led to chaos at the nation’s airports as aliens with lawful visas were denied entry. The judges took particular umbrage at the administration’s reckless application of the exclusion, at least initially, to lawful permanent-resident aliens — essentially, green-card holders who make America their home, are already subjected to thorough screening, and are considered “U.S. persons” for most legal purposes.

Nevertheless, the poor implementation is an issue entirely separate from what ought to have been the president’s indisputable legal authority to impose temporary restrictions on non-Americans for the purpose of improving vetting. And even on the matter of implementation, the Ninth Circuit churlishly refused to credit the administration with relenting on the exclusion of green-card holders. In the Ninth Circuit’s world, there’s no problem with a single lawyer in a robe imposing his national-security preferences on the entire country, but a directive by the White House counsel is insufficient to instruct executive enforcement agencies that the president has decided to exempt lawful permanent residents from his own order.

Plainly, the panel was hardwired to rule against the administration. This is further evidenced by its overwrought intimation that because candidate Trump spoke on the campaign trail of implementing a “Muslim ban,” the order by President Trump, which manifestly is not a Muslim ban, might nevertheless be intended as one.

The panel also twists a Supreme Court precedent, Zadvydas v. Davis (2001), to reach its conclusion. In fact, Zadvydas explicitly recognizes the government’s power to exclude deportable aliens and detain them until a country willing to take them is found. The caveat it imposed, though ill-conceived, was extremely narrow: The judiciary could concoct a due-process limit on the length of detention. Saliently, the Zadvydas Court took pains to exempt its ruling from cases raising national-security concerns. Even so, Justice Kennedy, in dissent, ripped the majority for “arrogating to the Judicial branch” foreign-policy powers the Constitution commits to the political branches. Such valid criticism was enough to induce Justice Stephen Breyer, writing for the majority, to stress that the High Court was neither questioning “the political branches’ authority to control entry into the United States” nor considering “terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to national security.”

The political branches’ plenary authority to control alien entry into the United States, and the heightened deference owed by courts to the national-security judgments of the political branches, are precisely at stake in the matter of President Trump’s executive order. As the case inevitably heads to the Supreme Court, is it too much to hope, even in a post-Boumediene world, that the justices will remember their protestations of modesty? Or are we all living in the Ninth Circuit now?