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.