I am commencing this blog with a reading of the order of Court of Appeals for the Ninth Circuit in the case of Washington vs. Trump (17-35015, from 9 February 2017). The text of the order may be found here. I make the effort in the belief that historians of law and public power have something to contribute to understandings of our contemporary situation. In future posts I will have more to say of an historical and comparative nature. I begin with this post in the hope that it might be useful to some, and because I didn’t take such action when constraints on executive power were under debate under George W. Bush, and the need for action seems to me now even greater.
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On my reading, the board of the 9th circuit (that is to say, the three judges from the 9th circuit who heard this appeal) implicitly rebuke the government on three grounds (which one might describe as lawyerly), and take issue with the government on three-plus substantive matters. These are as follows:
The rebukes concern: (1) the government doesn’t understand appellate procedure; (2) the government has made the wrong argument at the wrong time [the argument might also be incorrect, but that’s a separate point]; and (3) there’s prima facie evidence regarding what one might term “legislative intent” that is at odds with the government’s current representations about its own motives.
The most important substantive matters concern: (A) the right of the states to be plaintiffs in such a suit in the first place (“standing”); (B) the power of the courts to oversee and preserve the due process rights of persons affected by actions of the US government; and (C) the Establishment clause and RIFRA. I remark on many of these but not all in what follows.
The (implicit) rebukes of the government are very funny and quite telling and may in the end prove meaningful. As regards (1), the 9th Circuit more or less says: “You wrote an extraordinarily sloppy document. The details that we describe as sloppy are partially responsible for the stay of enforcement issued in Washington. You claim to need emergency relief from the stay because you don’t know enough about the history of procedure under which a temporary restraining order may be subject to review as if it were a so-called reviewable preliminary injunction. But we do know that history, and therefore the claim by which you justify the need for emergency relief is wrong.” Basically, they accuse the government of not knowing the totally conventional sleights-of-hand that govern the temporality of appellate procedure. It’s a stunning put-down.
As regards (A) [universities come in here; being a professor at the University of Chicago, , which is the bit that interests me]: there is a history — largely a 20th-century history — in which the Supreme Court has radically narrowed the rules governing standing (in lay terms, the right to sue) when one seeks to challenge the constitutionality or legality of an executive action. Basically, the position of the Supreme Court has been: “In the case of the President, the Constitution outlines a procedure to try him, and the power to start and manage that procedure is assigned to Congress; therefore, the right of others to sue can properly be radically restricted.”
In short, one has to demonstrate direct harm. However, the demonstration of harm has a certain formal aspect, and the 9th Circuit capitalizes on this. The State of Washington itself cited the University of Washington as a branch of the State, and claimed that the University was harmed, and therefore the State was harmed. [That the University is a branch of the state went uncontested.]
Two points of law then come in. The University needed to claim an actual rather than a theoretical harm, but the definition of actual harm is largely formal. There’s no dollar figure attached to make it a “real” harm. So the University said, inter alia, that two prospective employees had been barred from entry. The University had paid for the visa applications — a trivial sum for a public corporation with a budget in the billions. But the claim that the University would lose that “investment” amounted to proof of harm.
Second, as a backstop against this argument, the 9th Circuit cited a considerable body of case law that allows educational institutions in particular to claim standing based on a demonstration of harm to a constituent member. Basically, this is a socially progressive argument that allows socially authoritative and powerful persons and institutions (with better access to law) to access standing on behalf of those who are less authoritative and less power. Thus, the University may claim standing on behalf of students who are not able to return for classes, even if the University itself might or might not be able to document a quantitative harm to itself based on the exclusion of those individuals.
The decision then digresses on a point that I consider a rebuke (2) rather than a substantive concern. This is the claim by the government that the President’s responsibility for national security makes anything that he does in pursuit of national security unreviewable. This is a doctrine of the last decade in new language — that is to say, this is a new version of what was advanced in 2003-4 as the “Commander-in-Chief power.” That was an attempt slightly over a decade ago to ascribe domestic constitutional meaning to language that had not been so freighted before. The attempt was interesting (and dangerous) and largely failed, not without risk to us all. The “National Security” claim is homeomorphic with that argument, without, I think, any anchor in constitutional language. The 9th Circuit identifies a formal flaw in some of the claims made in this regard, but because it is merely reviewing a stay (as it repeatedly says), it demolishes the doctrine without declaring that it is seeking to have the final word on it.
Although it doesn’t bear on universities, let me just quickly say a word about (B). The crucial issue here bears on rights issues that arose a decade ago. In that sense, as with the previous paragraph, we are revisiting issues that were litigated under Bush. A decade ago with regard to “habeas corpus,” and today with regard to 5th Amendment guarantees of due process, there’s a basic issue that the Constitution clearly distinguishes (and has been interpreted as distinguishing) between some rights that it guarantees to citizens, and others that it guarantees (loosely speaking) to all persons who fall under the power and protection of the US government. Once legal rights are at stake — I say “legal rights” to narrow the term “rights” and exclude the wishy-washy talk of contemporary rights discourse — the burden of argument shifts. In order to reverse a stay, the government has to show that it’s likely to succeed. Otherwise, the abrogation of rights is a very serious matter..
An amusing and non-trivial additional matter concerns the government’s attempt to meet arguments about a category of affected persons under (B): the White House counsel clarified (and revised) the order in respect of green-card holders, and this was offered as a sop diminishing concerns related to (B). But the 9th Circuit correctly responds that the White House Counsel has no authority to do this, and in effect accuses the government of not understanding constitutional law (at best) or clumsy dishonesty (at worst): cf. (1). And there’s a very funny put-down — about a very serious matter — concerning the harm to citizens if their alien spouses are not allowed to return to the country.
This is a pretty awesome document. It is hasty, and who knows what will happen. But the 9th Circuit found the government’s argument on behalf of the Executive Order pretty amazingly bad.
The Romanist 