This column by ACRU Fellow Ken Klukowski was published March 17, 2017 by Breitbart.
The full U.S. Court of Appeals for the Ninth Circuit on Wednesday voted against rehearing the three-judge panel decision that had affirmed a lower court’s blocking President Donald Trump’s first executive order on immigration from terror-prone nations.
Five conservative judges on the San Francisco-based court dissented from that denial of an en banc rehearing, writing an opinion explaining why their court should reconsider the case.
The dissent by written by Judge Jay Bybee, who began his 26-page dissent by stating, “Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and the wisdom of the policy choices made by the President is not a matter for our consideration.”
Bybee quoted a 1950 Supreme Court case which declared, “The exclusion of aliens is a fundamental act of sovereignty.”
The dissenting judges also quoted the relevant provision of federal law, where Congress decided at 8 U.S.C. § 1182(f):
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.
Bybee went on to explain that:
[T]he panel made several other legal errors. Its holding that the States were likely to succeed on the merits of their procedural due process claims confound century-old precedent. And its unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.
The Supreme Court held in 1976 that “the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.” The political branches are elected officials in Congress and the White House.
The law requires judges to “distinguish between two groups of aliens: those who are present within our borders and those who are seeking admission,” Bybee continued.
The Ninth Circuit three-judge panel acknowledged that the Supreme Court forbids courts from looking to the motivation of immigration officers when they deny an alien entry into the United States, but then held that this rule does not keep judges from determining the motivation when a president makes the same decision.
That “stands the separation of powers on its head,” Bybee added. “With a moment’s thought, that principle cannot withstand the gentlest inquiry.”
Showing how the Supreme Court’s Kleindiest v. Mandel case sets forth the constitutional rule that controls this legal challenge, Bybee observed, “Compounding its omission, the panel missed all of our own cases applying Mandel to constitutional challenges to immigration decisions.”
After exploring several Supreme Court cases that all point in the same direction, the dissenting judges summarized, “When we apply the correct standard of review, the President does not have to come forward with supporting documentation to explain the basis for the Executive Order.”
“As tempting as it is to use the judicial power to balance… competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy,” Bybee said.
Noting that “every four years we hold a contested presidential election” in which every judge is disappointed at some point in their careers, he added that federal judges must “respect the consequences of our elections” and “trust that the wisdom of the nation as a whole will prevail in the end.”
Judge Bybee and his dissenting colleagues concluded:
Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress.
It is unlikely that the Trump administration will petition the Supreme Court to review this particular decision, which concerned only the first policy, Executive Order 13769. More likely, when one or more of the federal appeals courts hearing the challenges to the revised policy — Executive Order 13780 — issues their decisions on the new order, the High Court will finally weigh in, unless the 90-day policy has expired by that point.