This column by ACRU Policy Board member Hans von Spakovsky was published March 20, 2017 by National Review.
What kind of judges fill the ranks of the federal judiciary these days? More often than not, unfortunately, it’s the kind who refuse to follow the law and the Constitution, and whose biases and personal views distort their decision-making.
Consider the multiple decisions enjoining President Donald Trump’s executive order that temporarily suspends travel from terrorist-safe havens in the Middle East and Africa.
As I have written on a number of occasions (see here, here, and here, for example), the district-court and appellate-court judges in these cases have ignored the federal immigration-law provision that gives President Trump the authority to issue this order. They’re also ignoring prior precedents from the U.S. Supreme Court upholding the power of presidents to suspend the entry of aliens into the United States. And they have made unjustified findings that the order violates the establishment clause of the Constitution and was intended to discriminate on a religious basis.
But there are also some very good federal judges, and five of the best joined together in a stirring dissent released March 15 that explained in detail why the president has acted fully within the law and the Constitution. Their dissent should be required remedial reading for the federal judges assigned to all of these cases. It was filed in a Ninth Circuit Court of Appeals decision that denied en banc review (review by the entire court) of the astonishing recent decision by a three-judge panel; the three judges refused to throw out the injunction issued against the original executive order by a district-court judge in Washington State.
In a dissent written by Jay Bybee and joined by Alex Kozinski, Consuelo Callahan, Carlos Bea, and Sandra Ikuta, the judges explain why the panel’s decision was full of errors that “confound Supreme Court and Ninth Circuit precedent” that will make it impossible for the district courts “to know what law to apply in the future.” Moreover, they note, the personal views of federal judges should be “of no consequence.” “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 ‘[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.’”
The dissenters then proceed to do what the judges who have ruled against the administration have not done: They give a detailed explanation of the constitutional and federal statutory provisions that provide the authority for the president’s actions, as delegated to him by Congress, and the long string of court decisions upholding that authority — and not just U.S. Supreme Court decisions, but also prior decisions in the Ninth Circuit itself that were unashamedly ignored by the three-judge panel.
They point out that “many presidents have invoked the authority of §1182(f) to bar the entry of broad classes of aliens from identified countries,” and they add a long footnote listing all of these executive orders by Ronald Reagan, George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama. For the full Ninth Circuit to not exercise its discretion to overrule the three-judge panel is “a fundamental error” because the panel “neglected or overlooked critical cases by the Supreme Court and by our court making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.” The panel’s faulty legal analysis “conflicts irreconcilably with our prior cases.” The dissenters proceed to list case after case after case that upheld the power of the executive branch to make these types of decisions.
Furthermore, the panel’s decision on the supposed due-process rights of aliens “confounds century-old precedent.” 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 dissent sarcastically notes that the panel said that it is an “uncontroversial principle” that we “owe substantial deference to the immigration and national security policy determinations of the political branches.” However, that statement by the panel “was both the beginning and the end of the deference the panel gave the President.”
The dissent references a Supreme Court decision from 1972, Kleindienst v. Mandel, as the precedent governing any actions by Congress and the executive branch “affecting aliens who are outside our borders and seeking admission.” That case severely limited the ability of courts to second-guess such decisions, holding that when the executive branch has exercised its authority to exclude aliens “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Yet the Ninth Circuit panel simply “tossed” this 1972 decision “aside,” and it did so for illegitimate reasons, because that case involved a decision by a consular officer, not the president.
How ridiculous was that legal analysis by the panel? As the dissent says:
The panel’s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head. We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision? With a moment’s thought, that principle cannot withstand the gentlest inquiry, and we have said so. See Bustamante v. Mukasey [a prior Ninth Circuit decision in 2008].
President Trump’s “actions might have been more aggressive than those of his predecessors, but that was his prerogative.” Considering prior precedent, they add:
Even if we have questions about the basis for the President’s ultimate findings — whether it was a “Muslim ban” or something else — we do not get to peek behind the curtain. So long as there is one “facially legitimate and bona fide” reason for the President’s actions, our inquiry is at an end.
That bona fide reason was provided in the president’s explanation of the terrorist activity in the countries targeted by his executive order and his assertion that we “must be vigilant” in light of “deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest.” The panel’s “errors are many and obvious,” according to the dissent, which is “acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order.” There is no question that many have “contested the extent of the national security interests at stake” and the “value that the Executive Order added to our security against the real suffering of potential émigrés.” But, as “tempting as it is to use the judicial power to balance those 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.”
In their conclusion, the dissenters issue a warning about a fundamental principle of our democratic system that is being violated by too many judges and those challenging President Trump’s national-security decision as expressed in his executive orders:
For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches — and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.
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. We will yet regret not having taken this case en banc to keep those lines of authority straight.
As these five judges have lucidly explained, the exclusion of aliens is a fundamental act of sovereignty. The power delegated to the president by Congress to make these decisions is extremely broad, and federal courts have extremely limited powers to question his judgments. This fundamental principle has been violated this year by federal judges in Washington, Hawaii, Maryland, and other states. When this executive order finally gets to the Supreme Court, the justices could do no better than adopting this dissent in whole when they overrule these improper, erroneous, and plainly wrong court decisions that have obstructed the president’s ability to protect our country.