Trump and the Ninth Circuit - Both Partially Right; Both Partially Wrong

On Jan. 27, President Trump issued an order “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The federal district court enjoined enforcement of portions of that executive order. The Ninth Circuit Court of Appeals refused to keep the district court's ruling.

Who's right? As to resident aliens, the Ninth Circuit is right; the president is wrong. As to non-resident aliens seeking admission, the Ninth Circuit is wrong; the president is right.

The order cites the 9/11 terrorist attacks, and that “numerous foreign-born individuals have subsequently been convicted or implicated in terrorism-related crimes.” It declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” It also finds “deteriorating conditions in certain countries due to war .. .and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. It finds the U.S. must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”



Congress has specifically granted to the president powers relative to inadmissible aliens: "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."

Trump's order was promulgated pursuant to Congress' unambiguous grant of authority and he acted with all the president's Article II powers together with Congress' Article I immigration powers.

The limits of presidential power were best enunciated in Youngstown Sheet & Tube Co. v. Sawyer. There, President Truman, without Congressional authorization, seized the steel mills to prevent strikes from impeding the government's efforts to prosecute the Korean War.

President Trump here, on the other hand, had full Congressional authorization. In his concurrence with that 1952 opinion, Justice Robert H. Jackson wrote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.

"In these circumstances, and in these only, may he be said ... to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."


So on what basis did the Ninth Circuit enjoin enforcement of Trump's order? The Due Process clause of the 5th Amendment, which prohibits government from depriving individuals of their “life, liberty, or property, without due process of law.

In the words of the Ninth Circuit: "The Executive Order makes several changes to the policies ... by which non-citizens may enter the United States. ... First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. … Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program. .... Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality. ... Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees."

The district court, the Ninth Circuit said, had "enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c)in their entirety." He also "enjoined section 5(e) to the extent that section “purports to prioritize refugee claims of certain religious minorities."

The Ninth Circuit referenced the U.S. Supreme Court holding in Zadvydas v. Davis (2001) while ignoring this following of that holding:

"The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. ... It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. ... (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries)."


Posted: QCOline.com February 19, 2017
Copyright 2017, John Donald O'Shea