In oral arguments before the Ninth Circuit Court of Appeals yesterday, the Government devoted as large a chunk of time as it was able to the claim (in various forms) that the President was entitled to broad deference on the determination whether it is necessary in the interest of national security to suspend the entry of the class of foreign nationals named in his Executive Order.  It is a familiar executive branch argument in cases involving foreign affairs and (broadly speaking) takes two forms here: (1) the statute granting the President the authority to suspend the entry of particular aliens gives the President total discretion in deciding which classes of aliens to exclude; and (2) even if the statute did not (or should not be construed to) grant the President such discretion, constitutional separation of powers principles requires the courts to defer to executive judgments of this nature.  Neither argument is especially persuasive here. Let’s take each in turn.

The statute authorizing the executive order here is broad indeed, providing: “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.” (8 U.S.C. § 1182(f)) The text requires the involvement of no government actors besides the President personally, and no requirement that the President consult or consider anything particular other than his own assessment of “the interests of the United States.” But it would raise a significant constitutional question for the statute to be read to mean that there are absolutely no restrictions on this statutory discretion.  For one thing, as I take it the government would concede, the President could not exercise this authority in a way that violates some affirmative prohibition of the Constitution – whether the Establishment Clause or any other.  For reasons I’ve explained in an earlier post, there are of course significant questions in this case whether those affected by this order have rights at all under the Constitution. But where those constitutional rights are at stake (as was most clearly the case for the lawful permanent U.S. residents initially impacted by the executive order), the statute could not be read to allow what the Constitution prohibits.  Courts must thus be able to inquire into the exercise of executive discretion under the statute at least far enough to determine whether the executive order was constitutional or not. And because some of the constitutional claims in this case (particularly claims about an intent to discrimination against one religion) require consideration of motive, the statute must be read to allow some inquiry into the President’s reasons why he believes the entry of the excluded aliens was detrimental to the United States – reasons that, if unconstitutional in nature, are entitled to no deference at all.

What about the broader argument in favor of deference? That is, for example, even if the statute must be read to allow some minimal inquiry into why the President acted as he did – at least as far as to assess the absence of unconstitutional motive – the President is entitled to something like the benefit of the doubt, or need produce no more than one minimally rational reason (or “facially legitimate, bona fide reason”) – for why he selected these groups of aliens at this time.  More broadly still, the Government suggests in its brief (as other executives certainly have in the past), the President is constitutionally entitled to deference on such questions of national security, lest the courts intrude on parts of the power the Constitution commits to the executive in the exercise of his authority under Article II.  At risk of oversimplifying an area of thought that has been the topic of at a minimum Federalist Papers, court cases, books, and (easily) thousands of scholarly articles over the past two centuries, there are in essence three reasons why the executive has tended to make the argument that it is entitled to deference in cases such as these: (1) courts have always done it; (2) the executive has greater expertise and institutional competence than the courts in this area (in the form of both access to information and experiential/analytical skill); (3) the (elected) President is more politically accountable than the (unelected) courts, and is therefore in a better (more democratic) position to make fundamentally political judgments about our country’s relationship with other countries and their nationals. Again, let’s take each in turn. (And for a far longer treatment of many of these issues, see some older work of mine, e.g., here.) 

It may be that you went to law school at a time when professors still said, ‘courts always defer to the executive on matters of national security.’ If that was ever the case (and it was always a dicey claim), it is manifestly not so today.  The Supreme Court (in the voice of justices of both political parties) has, in the past 15 years, for example, rejected the President’s argument a statute authorizing him to deviate from ordinary court martial rules in military commission trials whenever he thought the application of ordinary rules not “practicable” gave him unreviewable discretion to determine “practicability” (Hamdan v. Rumsfeld); rejected the executive’s argument that the President’s power to enter into agreements with foreign nations included the power to instruct state courts to enforce those agreements (Medellin v. Texas); and rejected (unanimously) the continued vitality of much-cited dicta from the Court’s 1934’s United States v. Curtiss-Wright that the President has unique, essentially unbounded discretion in matters of foreign affairs (Zivotofsky v. Kerry).  As Chief Justice Roberts put it in Zivotofsky:  “In support of his submission that the President has broad, undefined powers over foreign affairs, the Secretary quotes [Curtiss-Wright], which described the President as ‘the sole organ of the federal government in the field of international relations.’ This Court declines to acknowledge that unbounded power….” None of this is to say the courts never defer to the President on particular questions of national security.  Quite the contrary.  It is, rather, to say that mere reference to the general role of the courts here will not be persuasive; it depends entirely on the particular case.

Second, to the extent the President’s argument in favor of deference is based on a claim of knowledge and/or expertise, the Court has recognized in a variety of contexts that it is, in the modern era, a claim about the knowledge and expertise of the knowledge and expertise of the executive branch as a whole – knowledge and expertise housed in this case principally in executive agencies including the Department of Defense, State, Homeland Security, and the agencies of the U.S. intelligence community. (Thus, for instance, the Supreme Court declined to defer to the Environmental Protection Agency’s argument (in 2007’s Massachusetts v. EPA) that that regulating greenhouse gases might impair the President's ability to negotiate with ‘key developing nations’ to reduce emissions’ on the grounds that the EPA had “made no showing that it issued the ruling in question here after consultation with the State Department.”) In other words, the Court has increasingly recognized what reason suggests should be true – if one accepts the value of knowledge and expertise as relevant in informing the construction and application of law, one might want to have some at least process-based indication that those with actual knowledge and expertise have been consulted in the law’s construction and application.  As a variety of news reports suggest, and as the development of a record might help to establish, it is entirely unclear whether and to what extent those agencies were consulted before the fact here.

Finally on the notion that the President’s political accountability puts him in a better position than the courts to answer questions of who should be omitted and who not. Surely there is something (more than something, as I’ve indicated in an earlier post) to the argument that the political branches (as a matter of text and structural competence) have a particularly important role to play in determining questions of who can and should be a part of the polity (even temporarily).  But beyond the very important questions of precedent and democratic philosophy this view raises, the argument that there are independent political accountability advantages that redound to the President under these circumstances are particularly weak where, as here, the presidential action targets a population that is least politically able to hold elected officials to account.  Lawful permanent residents and other non-citizen residents of the United States – all of whom were at least initially encompassed by the terms of this order – cannot vote in national elections.  Indeed, they are subject to penalties – including deportation – if they do.  In any context but this one, one might imagine that it is precisely these circumstances that would lead the courts to claim advantage over the President.  He is not politically accountable to this population of constitutional rights holders at all.  It is in this context, where individual rights are at stake, the courts have always mattered most.