Law & the Courts

The Ninth Circuit Is Wrong

Outside the Ninth Circuit in San Francisco, Calif. (Reuters photo: Noah Berger)

It is but a small compliment to a three-judge panel of the Ninth Circuit to say that the latest judicial ruling against President Trump’s immigration executive order is marginally less awful than the rulings that came before. Rather than determine that the order violates the Constitution solely because Trump issued it, the Ninth Circuit panel at least engages in actual statutory analysis — taking the heretofore novel view that the law actually matters.

It’s a shame, then, that the analysis is so bad. It’s worse than bad; it’s harmful to national security. The court yanks from the executive branch powers Congress has clearly delegated to the president. The applicable statute, 8 U.S.C. 1182(f), is broad and clear:

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.

Note the key language “whenever the President finds.” The core problem with the Ninth Circuit’s ruling is that it added an extra decision-maker. Now, it’s “whenever the president finds, and a court agrees.” In other words, the Ninth Circuit blocked the executive order because the president didn’t meet its subjective, entirely made-up standard as to when it believes entry of “any class of aliens” would be “detrimental to the interests of the United States.”

It’s not enough to show — as the administration did — that each of the six countries subject to a short immigration pause were either torn apart by jihadist conflict or active enemies of the United States. The Court concocted a strange new test. Here’s the key quote:

The order does not tie these nationals in any way to terrorist organizations within the six designated countries. It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness. In short, the order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.

Note the dangerous judicial sleight of hand. The court is demanding that the Trump administration make particularized, individualized showings of threat when the administration’s rationale for the pause is that conditions in those countries make that particularized showing difficult and its absence dangerous. Moreover, the court says something that’s simply not true. The order does “provide a rationale” for pausing entry from the six designated countries. In fact, it articulates specific concerns for each country — concerns that the court brushes off with a depth of analysis one would expect from a #Resistance blogger, not from our nation’s leading jurists.

The court indulges the lazy pundit’s practice of counting up terrorists and comparing their nationalities with the nations subject to the pause. If the pause is based on present conditions, then past experience is of limited utility. Yemen is currently torn by civil war. Libya is currently a jihadist playpen. Somalia is currently a failed state. Terrorist recruitment and infiltration efforts are constantly evolving. Must we wait for actual bodies in the streets before the president can “prove” the existence of the threat?

When it comes to determining whether entry of a ‘class of aliens’ would be ‘detrimental,’ the president decides.

The entire opinion is written as if the threat from jihadists is impossibly remote. It waxes eloquent about the harm of delaying relatives from joining families in the United States or about the damage allegedly done to colleges if scholars or students are delayed entering the U.S., but it pays mere lip service to the horrors of terrorist violence. Indeed, the entire opinion is written as if the pause were an outright “ban” and dismisses completely the value of a short delay in immigration entry so that immigration officials may mount an internal review.

The ruling had one positive aspect. Incredibly, the district court had enjoined not just the administration’s travel pause but its internal review of  its vetting procedures. The panel vacated that portion of the injunction, allowing the administration far greater freedom to do the necessary internal analysis before proposing or enacting new policies.

After months of lower-court activism, the focus of litigation should move to the Supreme Court. One hopes that its justices will remember their role. It is not to subjectively weigh security risks but rather to read statutes and interpret the Constitution. In this case, the statutes are clear. When it comes to determining whether entry of a “class of aliens” would be “detrimental to the interests of the United States,” the president decides. The courts must defer.


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