Thursday, June 15, 2017

The Appeals Courts Aren’t Deferring At All to the President’s National Security Defense of His Travel Ban – Is This a Trump Thing or a Presidency Thing?

Deborah Pearlstein

The past week saw the Ninth Circuit Court of Appeals joining the Fourth Circuit in concluding that the Trump Executive Order (the Order) barring nationals from 6 Muslim-majority countries is so likely to violate the Constitution or laws of the United States, the Order cannot be allowed to take effect.  The Fourth Circuit thought the ban ran afoul of the Constitution’s prohibition against religious discrimination; the Ninth Circuit thought the President failed to comply with statutory restrictions on executive immigration power.  But both decisions turned on the courts’ basic rejection of the President’s argument that the Order was necessary to protect national security.

Regardless whether the Supreme Court decides to review these decisions (in the face of ample reasons not to), the lower courts’ decision-making is already striking. As others have by now pointed out, there are plenty of cases to which the courts could have pointed for the generic proposition that presidents are entitled to deference by the courts on matters related to immigration, and matters related to national security – a practice one might imagine is only amplified when a case sounds in both immigration and national security together.  So why have the courts been so determined not to defer to the President here?

A number of writers over the past few weeks (e.g. here) have suggested that the courts are not deferring in these cases because they categorically do not trust this President.  That is, between this President’s chronic expressions of disdain for the U.S. intelligence community, the judiciary, and the independence of federal law enforcement (and other not-in-the-briefs behaviors) – the courts have now cast aside the ordinary deference to which Presidents are entitled because “this president so obviously has not earned it.” Yet as well deserved as such general judicial distrust would be, there is nothing in either decision to suggest their holdings were based on a unique absence of trust here. And while it might not take too much psychologizing to support a hypothesis that many federal judges in fact do not trust this president, I would be more likely to embrace the view that this is really what’s going on in these decisions if the reasons the courts had given were so implausible or otherwise unique in the course of ordinary jurisprudence in these fields that some alternative explanation had to be the real one.

Dawn Johnsen offers a more detailed but still Trump-specific explanation, arguing that this President should fairly be understood as having ceded all claim to the traditional basis for judicial deference, which “embodies assumptions that the president’s actions reflect regular processes behind-the-scenes, that the decisions are informed by expertise and judgment….”  Indeed, the Ninth Circuit’s decision relies expressly on the Order’s lack of statutorily required “finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.”  But the Ninth Circuit does not cite process failures per se for the inadequacy of the President’s judgment.  Rather, it concludes that the “findings” the President made “do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.”  In a world in which a president needs only invoke the words “national security” to secure judicial deference, the President’s assertion here might suffice.  But it would be a mistake to think that’s the judicial world in which we reliably live.  On the contrary, the Ninth Circuit here does exactly what the Supreme Court did in striking down the original military commission system established under an entirely different president. In Hamdan v. Rumsfeld (2006), the Court applied a statutory requirement that any deviation from existing (statutory) military trial procedures be supported by a presidential determination that it was “impracticable” to apply those procedures.  As the Hamdan Court concluded, “[n]othing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case.” The President’s ‘findings’, such as they were, were exactly as inadequate to support its action in that case as this President’s are here.  Again, without doubting the existence of any number of unique irregularities in the Trump process that produced this particular executive order, the Ninth Circuit is not-deferring in a way that is familiar in the post-9/11 world.

Then there is the prospect that “Trump’s extraordinary – indeed, unprecedented – behavior” means he is not entitled to traditional judicial deference because we lack “a plausible basis for believing” what judicial deference otherwise assumes – that the President is not making decisions “in bad faith, or on the basis of impermissible motives.”  Indeed, it was exactly the opposite conclusion – namely, that plaintiffs had “plausibly alleged with sufficient particularity” that the reason for the government action was provided in bad faith – that led the Fourth Circuit to look behind the Order’s stated national security basis to examine whether Trump’s actual motives violated the Constitution’s Establishment Clause.  Yet the court’s move here likewise reflects nothing new under the deference sun. Rather, the Fourth Circuit expressly applies the longstanding, profoundly deferential standard in 1972’s Kleindienst v. Mandel providing that the courts will not look behind the executive’s exercise of discretion to exclude aliens from the United States so long as the executive “exercises this power on the basis of a facially legitimate and bona fide reason.”  Where there is evidence that the reason is not bona fide – the literal translation of which is good faith – the court has long retained the power to look behind executive immigration actions. Trump’s bad faith may be unprecedented, but the courts’ concern about bad faith is not.

Trump’s Order, the chaos that surrounds it, and the President who signed it are unique in all kinds of ways.  The courts’ approach to it not nearly as special as all that.

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