Law & the Courts

What Trump’s Attorneys Argued in the Ninth Circuit

Outside the 9th U.S. Circuit Court of Appeals in San Francisco, Calif. (Reuters: Noah Berger)
Both the Constitution and precedent give the president clear authority to suspend entry of non-citizens.

The Ninth Circuit just heard arguments last night in State of Washington v. President Trump. Millions of Americans tuned in to the live stream. What happened exactly?

The Ninth Circuit, composed of a three-judge panel, considered whether to suspend the Washington State District Court’s temporary injunction of the president’s executive order that placed a temporary pause on entry of individuals from seven countries. More plainly, is President Trump’s temporary suspension of non-citizens from these seven countries a legitimate, constitutional executive action?

President Trump’s legal counsel argued primarily:

1) No non-citizen has a right to entry into the United States. Supreme Court cases such as Kerry v. Din (2015) also hold that a citizen does not have a constitutional right for a non-citizen’s relative (even a spouse) to live with that person in the United States. Interestingly, Kerry proceeded from the Ninth Circuit to the Supreme Court, so that case history might shed some light on how this panel will rule in the current case.

2) The president has broad discretion to implement a temporary pause through executive action on foreign nationals that seek entry into the United States. In Article I, Section 8 of the U.S. Constitution, immigration and naturalization as a subject matter is a power fully reserved to Congress. Congress has, through its legislation in 8 U.S.C. 1182(f), delegated broad authority to the president to suspend entry of all non-citizens or any class of citizens (as either immigrants or non-immigrants — meaning regardless of the purpose of their entry or visit) whenever the president in his sole discretion finds that entry of those non-citizens would be “detrimental to the interests of the United States.” Trump’s counsel was correct that this is a very broad, unilateral discretion.

3) The injunction imposed by the Washington State District Court was overbroad because it imposed the injunction nationwide, not just against specific, identifiable individuals harmed or even exclusive to the State of Washington. Trump’s counsel argued that even if the Ninth Circuit held that the injunction should remain in place, the Court should limit the scope of the injunction just to those specific individuals where the State could provide evidence of harm or limit it to the State of Washington. This is a good argument in the alternative to at least limit the impact of the Washington State District Court’s injunction.

Ultimately, the arguments Trump’s counsel made were sound, compelling, and, most significantly, constitutionally accurate. My prediction based on the composition of the Ninth Circuit bench — and if we can really tell anything based on the lines of questions during oral argument — is that it will be a 2–1 split in favor of Washington State and Trump’s counsel will appeal to the Supreme Court.

If that happens, we are still in an eight-justice Supreme Court, so if the vote there is a split 4–4 decision, the holding of the Ninth Circuit would remain in place. I don’t think that Trump’s counsel would wait to file an appeal, given the nature and timelines of this issue, but the implications of a 4–4 split or a 5–3 in favor of Washington State would have precedent value that might not be favorable.

Congress has delegated broad authority to the president to suspend entry of all non-citizens or any class of citizens whenever the president in his sole discretion finds that entry of those non-citizens would be “detrimental to the interests of the United States.”

Regardless of one’s personal stance on the political considerations, if we look plainly at the constitutional delegation of power to Congress for immigration and naturalization issues, and Congress’s subsequent delegation to the president of specific power to pause entry of non-citizens where he sees fit, Trump’s executive action is constitutional. We should be wary of any judicial activism for political reasons because this could have far-reaching implications for U.S. foreign policy and national-security interests.

Further, regardless of any political considerations, we should also be grateful for our constitutional republic of checks and balances. Absent judicial activism, if an executive administration is in fact acting unconstitutionally, our judicial system should review those actions.

So regardless of the outcome here, we can be grateful for our system, and grateful for the nomination to the Supreme Court of Judge Gorsuch, a man who has a consistent track record of following the rule of law rather than engaging in judicial activism. When our American system of government is functioning properly, it works beautifully.

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