[ (Updated, Includes Temp. Restraining Order)”Protecting the Nation from Foreign Terrorist Entry into the United States” ; EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY AND MOTION FOR STAY PENDING APPEAL ]
James Robart, the U.S. district judge in Washington State, offered little explanation for his decision to stop President Trump‘s executive order temporarily suspending non-American entry from seven terror-plagued countries. Robart simply declared his belief that Washington State, which in its lawsuit against Trump argued that the order is both illegal and unconstitutional, would likely win the case when it is tried.
Now the government has answered Robart, and unlike the judge, Justice Department lawyers have produced a point-by-point demolition of Washington State’s claims. Indeed, for all except the most partisan, it is likely impossible to read the Washington State lawsuit, plus Robart’s brief comments and writing on the matter, plus the Justice Department’s response, and not come away with the conclusion that the Trump order is on sound legal and constitutional ground.
Beginning with the big picture, the Justice Department argued that Robart’s restraining order violates the separation of powers, encroaches on the president’s constitutional and legal authority in the areas of foreign affairs, national security, and immigration, and “second-guesses the president’s national security judgment” about risks faced by the United States.
Indeed, in court last week, Robart suggested that he, Robart, knows as much, or perhaps more, than the president about the current state of the terrorist threat in Yemen, Somalia, Libya, and other violence-plagued countries. In an exchange with Justice Department lawyer Michelle Bennett, Robart asked, “How many arrests have there been of foreign nationals for those seven countries since 9/11?”
“Your Honor, I don’t have that information,” said Bennett.
“Let me tell you,” said Robart. “The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone [President Trump] that says: We have to protect the United States from these individuals coming from these countries, and there’s no support for that.”
Perhaps Robart has been briefed by the intelligence community on conditions in Yemen, Somalia, Libya, and the rest. Perhaps Robart has received the President’s Daily Brief. Perhaps not. In any event, the Justice Department argued — reasonably but not successfully — that it is the president, and not a U.S. District Court judge in the Western District of Washington State, who has the knowledge and the authority to make such decisions.
“Your Honor, I think the point is that because this is a question of foreign affairs, because this is an area where Congress has delegated authority to the president to make these determinations, it’s the president that gets to make the determinations,” Bennett said. “And the court doesn’t have authority to look behind those determinations.”
Robart rejected that position outright. Later, in its emergency brief filed Saturday night with the 9th Circuit Court of Appeals in San Francisco, the government argued that a U.S. District Court judge has no legal right to stop a presidential action in which the president exercised his own constitutional power to conduct foreign policy, as well as power delegated by him to Congress in the area of immigration. The political branches of government have plenary authority over those areas, the government argued, citing cases from 1950, 1952, and 1999:
Judicial second-guessing of the president’s determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”). “[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).
In addition, the government argued, “courts are particularly ill-equipped to second-guess the president’s prospective judgment about future risks.” The reason: “Unlike the president, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.”
The government brief supported the president’s decision on both legal and constitutional grounds, starting with the law. And that starts with the Immigration and Nationality Act of 1952, which states:
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.
Quoting cases from 2016 and 1977, the Justice Department argued that, specifically in the context of immigration, “the Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.'” “When Congress delegates this plenary power to the executive, the executive’s decisions are likewise generally shielded from administrative or judicial review.”
Earlier presidents have “repeatedly invoked this authority,” the government brief argued, noting actions by Presidents Reagan, Bush I, Clinton, Bush II, and Obama. The Supreme Court even ruled in 1993 that the president had “ample power” to order a naval blockade to keep out Haitians trying to enter the United States. Surely he has the authority to stop a Libyan, in Libya, from receiving permission to enter the United States.
The government brief noted that the “vast majority” of people affected by the executive order are foreign nationals residing outside the U.S. Yemenis in Yemen, Somalis in Somalia, Libyans in Libya, etc. But Washington State argued that it has an interest, as a state, in stopping the Trump order because “immigration is an important economic driver in Washington.” The state’s lawyers argued that Microsoft alone employs nearly 5,000 H-1B visa holders, and that is in addition to those working for Amazon, Expedia, and Starbucks in the state. Therefore, the people of Washington State have legal standing to challenge the Trump order.
The government responded that, whatever Microsoft’s hiring preferences, the law is clear:
The [Immigration and Naturalization Act]’s carefully reticulated scheme provides for judicial review only at the behest of an alien adversely affected, and even then only if the alien is subject to removal proceedings. Under longstanding principles exemplified by the doctrine of consular nonreviewability, an alien abroad cannot obtain judicial review of the denial of a visa (or his failure to be admitted as a refugee). It follows that a third party, like Washington, has no “judicially cognizable interest” in such a denial.
In other words, a state cannot stop a president’s national security directive to satisfy the wishes of a particularly big business in that state.
Washington State also argued that the president’s authority under the Immigration and Naturalization Act of 1952 to deny entry to “any aliens or any class of aliens” was later limited by a 1965 amendment that “prohibits discrimination in the issuance of immigrant visas on the basis of race, nationality, place of birth, or place of residence.” The Trump order, Washington State lawyers argued, along with intent revealed in statements made by candidate Trump during the 2016 campaign, are discriminatory and violate the amended immigration act.
Not so, argued the Justice Department. “This restriction does not address the president’s authority…to ‘suspend the entry’ of aliens, which is an entirely different act under the immigration laws,” the Department argued. “An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border.” Beyond that, the government said, the lawsuit’s argument could lead to an absurd end:
Washington State’s interpretation…would lead to the untenable result that the United States could not suspend entry of nationals of a country with which the United States is at war, which would raise a serious constitutional question about Congress’s ability to restrict the President’s Article II authority to ensure the nation’s security.
Beyond that, there is the issue of non-immigrant entry into the U.S., that is, the millions of people who are admitted each year not as immigrants but as visitors. While the 1965 passage concerns “immigrant visas,” there seems to be no question among anyone that the president can halt the entry of non-immigrants at any time, and Trump’s order specifically included non-immigrants.
On the larger question of the Trump order’s constitutionality, the government makes a very simple point: foreign nationals in foreign countries do not have U.S. constitutional rights:
The vast majority of the individuals that Washington State claims are affected by the Executive Order are aliens outside the United States, but it is “clear” that “an unadmitted and nonresident alien” “had no constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel, 408 U.S. at 762; see Plasencia, 459 U.S. at 32. This is fatal to Washington’s facial challenges, which require it to show that there is no constitutionally valid application of the order. Even if the state could show a constitutional violation with respect to some individuals — and it cannot — they plainly cannot establish such a violation as to non-resident aliens who are outside the United States and who have no prior connection to this country…The district court’s sweeping injunction…conflicts with the basic principle that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982).
Nevertheless, Washington State argued that Trump’s order violates the First Amendment because it is “intended to disfavor Islam and favor Christianity,” and violates the Fifth Amendment because it is “motivated by animus and a desire to harm a particular group,” meaning Muslims, and because it would discriminate between groups seeking to enter the U.S.
To make its case, Washington State lawyers cherry-picked several Trump statements from the campaign to demonstrate alleged presidential intent to deprive Muslims abroad and in the U.S. of their constitutional rights.
The Justice Department responded in four different ways. First is the argument that no foreign national in a foreign country has U.S. constitutional rights to violate. Second is that the Trump executive order covers countries previously identified by Congress and the Obama administration as terrorist hot spots and is therefore not based on Trump’s alleged animus toward a particular religion. Third, the order does not target Muslims specifically. And fourth, and perhaps most importantly, it is not the role of a U.S. district judge to divine the president’s motives:
Washington State argued that the district court should disregard the president’s stated rationale for issuing the executive order because Washington State believed it was prompted by religious animus toward Islam. That argument is wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770 (1972), which held 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[.]” Cf. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning has particular force in the area of national security”). Here, as another district court has recognized, the executive order undeniably states a facially legitimate and bona fide reason — ensuring the “proper review and maximum utilization of available resources for the screening of foreign nationals” and “that adequate standards are established to prevent infiltration by foreign terrorists.” Order, §§ 3(c), 5(a), (c); see Louhghalam, Order 18-19. The order does so in part by incorporating a list of seven countries that were identified by Congress — and by the Executive in 2016 — as raising terrorism-related concerns.
Finally, the Justice Department noted that even with such a large body of law opposing Robart’s judgment, and in such a high-profile case with so much responsibility on the judge to clearly state his reasoning, Robart “did not confront” the arguments against his position and indeed “gave no explanation why the state of Washington has a high likelihood of success on the merits of its claims.” Beyond that, the state itself, as a state, is not subject to the executive order, and therefore does not have standing to challenge it. And Robart’s order is “vastly overbroad” and “untethered to Washington State’s particular claims” and “extends even to aliens abroad who currently have no visas” and “applies nationwide, effectively overriding the judgment of another district court [in Boston] that sustained the executive order against parallel challenges.”
In fact, while Judge Robart decreed that the interests of Washington State would be harmed by the Trump order, the government argued that the interests of the presidency, and of the Constitution, would be harmed by Judge Robart’s decision. “Judicial intrusion on the political branches’ exclusive authority over the admission of aliens, by violating the separation of powers, in itself constitutes irreparable injury,” the Department argued.
By the end of the Justice Department’s 24-page brief, Judge Robart’s, and the state of Washington’s, argument lay in tatters.
So what happens now? The Department filed the emergency request to stop Robart’s order with the 9th Circuit, long known as the most liberal appeals court in America. No matter how strong the case, many observers thought there would be zero chance the circuit court would take the government’s side. And indeed, the emergency effort to stop Robart was immediately rejected. But that was just the emergency effort. In the days ahead, there will be a fuller hearing on the issue, and possibly more appeals.
As that goes on, even among Trump allies there will be debate over whether the new administration moved too fast, whether it should have waited until it had more fully introduced the ideas in the executive order to the public and had its own team in place in the Justice Department. (The Department’s brief was filed by Noel J. Francisco, a former Bush administration official who is now a temporary Trump appointee serving as Acting Solicitor General.)
Despite the overwhelming strength of the administration’s argument, what happens next — as the case is argued in a liberal circuit and then possibly moves on to a Supreme Court divided evenly, 4 to 4, among liberal and conservative justices — is impossible to predict. But strength of the case does not assure victory. As Laura Ingraham, the conservative radio host who also served as a clerk for Supreme Court Justice Clarence Thomas, tweeted on Sunday: “The law is on Donald Trump‘s side. Doesn’t mean that the courts will follow it.”