By William J. Olson and Herb Titus
On Monday May 15, at 9:30 PST in Seattle’s William K. Nakamura U.S. Courthouse, the next battle in the spreading war against judicial imperialism will be fought: oral arguments in the government’s appeal of Hastings vs. Trump. (Video link)
At stake: who gets to set immigration policy—federal judges or democratically-elected leaders. And, ultimately, whether or not the Historic American Nation will survive.
In Shakespeare’s Julius Caesar, Mark Anthony observed in his eulogy to Caesar, “The evil that men do lives after them; The good is oft interred with their bones.” The same could be said of how our modern Caesars continue to shape our country even after they have left office, through the arbitrary actions of the federal judges they have appointed.
By the end of his eight years in office, Barack Obama had appointed 22 percent (two of nine) of the justices on the Supreme Court (Sotomayor and Kagan), 31 percent (55 of 179) judges on the U.S. Courts of Appeals, and 40 percent (268 of 678) of the judges on the U.S. district courts. As federal judges serve without fixed terms—and since the Congress has thus far neglected to give statutory meaning to the Constitutional requirement that judges serve only during a time of “good behavior”—they are often, but erroneously, said to serve “for life.”
This Obama government-in-exile is still thwarting President Trump. The incumbent’s agenda is being blocked by Leftist federal judges at every turn—especially his attempt to limit immigration from certain Islamic countries.
On December 7, 2015, then candidate Donald Trump issued his famous “Statement on Preventing Muslim Immigration.” Without taking this common sense position of opposing de facto open borders for Muslim terrorists, Trump may never have been elected. But the statement also gave federal judges the pretext they needed to substitute their personal political preferences over the decisions of the nation’s Chief Executive.
This statement, recently removed from the Trump campaign website, stated:
Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.... Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again. [Emphasis added.]
Over the next several weeks, candidate Trump expounded on the issue of Muslim immigration—sometimes appearing to backtrack, and sometimes just clarifying. Significantly, the transitional nature of the immigration ban, to remain in place only until the source of terrorism could better be understood and addressed, was regularly disregarded by Trump’s critics.
Immediate opposition came from Leftist law professors, who claimed vast expertise in this area, and asserted that a President’s authority was narrow and defined—neither of which was true.
We were excited to see the potential for a drastic change in immigration policy and persuaded the U.S. Justice Foundation to commission us to prepare a legal analysis of Trump’s original proposal. During the course of our research, we even received a request from a friend in the Trump campaign who asked for an immediate copy of our paper. It was published on February 12, 2016: “A Legal Analysis of New Proposals to Limit Immigration from Muslim Countries into the United States.”
Though we had suspected this was the case before we began, our research revealed Congress had vested in the President more than sufficient authority to shut the borders of the country to anyone or everyone he believed could pose a threat to the nation.
Following up on his promises, just a week after his Inauguration, President Trump issued Executive Order 13,769, “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017). The ink was barely dry on the EO when the Obama government- in-exile challenged Presidential authority in the area of immigration law—a type of challenge that previously had never been successful.
The first challenge was filed in the Western District of Washington by the Democrat Attorney Generals of two states that had cast their electoral votes for Hillary. The case was Washington and Minnesota v. Trump. After a hastily-called hearing, the first Temporary Restraining Order against President Trump’s EO was issued by Judge James Robart on February 3, 2017.
Judge Robart was widely understood to be a pro-immigration judge, because prior to joining the bench he worked providing legal services to refugees [Anti-Trump judge gave free legal help to refugees, by Paul Bedard, Washington Examiner, February 5, 2017]. He had been appointed by immigration enthusiast George W. Bush—whose little brother Jeb believed that immigrants come here illegally out of “an act of love.”
The TRO was appealed to the Ninth Circuit with record speed. Indeed, when we arrived to work on Monday, February 6, we learned that the Ninth Circuit had published a briefing schedule by which any amicus curiae brief that we may want to file was due by 3:00 PST that very day. We looked at the court rules, realized our brief was limited to 7 and one-half pages, and got to work, drawing from our prior research.
We recruited numerous organizations to join the brief: United States Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center.
With 15 minutes to spare, we filed one of only three briefs filed in support of the Trump Executive Order. [Amicus Brief in support of motion for stay pending appeal, Washington v. Trump (9th Cir. 17-35105), February 6, 2017].
A motions panel of the Ninth Circuit held oral argument by telephone the next day, February 7, 2017, at 3:00 pm PST. Along with hundreds of thousands of others, we listened online to that oral argument. We felt sorry for the Department of Justice attorney desperately arguing the President was acting based on a real threat from immigrants coming from countries where it was impossible to perform even the most basic security checks. It was clear no one wanted to hear it.
That motions panel consisted of three judges—two appointed by Democrats, and one by a (sort-of) Republican: Judge Michelle Friedland, age 44, the least senior judge on the Ninth Circuit having been appointed by Obama in 2014; Judge Richard Clifton, age 66, appointed by G.W. Bush in 2002—and on senior status since 2016; and Judge William Canby, age 85 (also on senior status since 1996), appointed by Carter in 1980.
The next day, February 9, 2017, the motions panel issued its opinion denying the motion for stay. The quality of analysis by the panel was, at least, disappointing. But we can say that it was inspiring—as it inspired us to write a lengthy column [Overstepping Authority: 9th Circuit Judges Substitute Their Policy Preferences for Trump’s, by H. Titus and W., CNS News, February 10, 2017]!
The 9th Circuit’s order was notable for many reasons, not the least of which was that it omitted to cite, quote from, or analyze the key federal statute on which the President had relied in issuing his EO—8 U.S.C. section 1182(f). Used by Presidents of both parties, that statute governs “Suspension of entry or imposition of restrictions by President.” President Trump took great delight in reading the statute to crowds at his rallies—pointing out that the language was so simple that even a federal judge should be able to understand it:
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.
The next week, the case came back before the 9th Circuit on the court’s sua sponte [done of its own accord] motion for rehearing en banc [in front of all the judges of a court, not just a selected panel]. This time we were allowed to file a brief with 4,200 words, and we had much more to say. [Washington v. Trump (9th Cir. 17-35105), Amicus Brief in support of rehearing en banc, February 16, 2017].
We didn’t just talk about the president’s authority in immigration law. There was also an important technical question at stake, one which had bothered us for years. There is a dispute as to whether the Constitution allows any judges who have largely retired by having taken “senior status” to continue to decide cases. This is especially important when they compose a majority of the panel, as they did in this case. We argued, drawing in large part from an excellent 2007 Cornell Law Review article [Are Senior Judges Unconstitutional? March, 2007] that the panel had been unconstitutionally composed. Although it is near impossible to get judges to consider challenges to their own legitimacy, we wanted to get that matter on the record.
From the moment the 9th Circuit decision was issued, it had come under intense criticism—even by Establishment legal commentators who had no affection for President Trump.
For example, in The New Yorker, CNN senior legal analyst Jeffrey Toobin, after quoting verbatim the statute upon which the contested EO in that case was based, observed: “What does the Ninth Circuit say about this provision? Nothing.”
Toobin then went on to say:
[T]he President’s exercise of his authority under this law must be consistent with the Constitution. But the words of the statute must be taken seriously as well.... The Ninth Circuit should have engaged with this statutory text and explored its relation to the commands of the Constitution.[The Vulnerabilities in the Ninth Circuit’s Executive-Order Decision by Jeffrey Toobin, The New Yorker, February 10, 2017. Emphasis added].
Benjamin Wittes, editor-in-chief of Lawfare and a Senior Fellow in Governance Studies at The Brookings Institution, noted the same glaring failure, faulting the panel for “not bother[ing] even to cite ... the principal statutory basis for the executive order.” “That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case,” he noted wryly [“How to Read (and How Not to Read) Today’s 9th Circuit Opinion,” Lawfare, February 9, 2017].
Let’s put this plainly. The Ninth Circuit court did not even bother to address the specific statue which gave the President the authority to implement his immigration order. It’s as if the court did not even care how flagrantly political its decision appeared.
There was even fierce criticism from within the court. As stated before, the motion to reconsider the decision en banc came from within the Ninth Circuit itself, from one of the judges. A majority of judges ultimately refused to rehear the case [9th Circuit Court of Appeals won’t reconsider President Trump’s original travel ban, by Denis Slattery, New York Daily News, March 16, 2017]. The stinging dissent issued by five Ninth Circuit judges to that Circuit’s refusal to reconsider the panel decision en banc provides even further grounds to doubt the viability of the Ninth Court’s initial ruling [Opinion of Judges Kozinski, Bybee, Callahan, Bea, and Ikuta, dissenting from denial of reconsideration en banc, Washington v. Trump, 2017 U.S. App. LEXIS 4838, *16.]
The dissent reveals something even more disturbing. Not only was the original decision not based on statute—indeed, the statute was completely ignored—it was based solely on the concept of “Due Process” supposedly owed foreigners who would be affected by the Executive Order. However, there is a long line of cases which have ruled that “the vast majority of foreigners covered by the executive order have no Due Process rights ... because they have never set foot on American soil” (id. at 1 (Kozinski, J., dissenting) (emphasis added)).
Although the first Executive Order was well supported by law, a tactical decision was made by the President to revise the order and accommodate some of the concerns expressed by reviewing courts. After what seemed like a significant delay while the President was staffing up the White House Counsel office, the President issued Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” on March 6, 2017.
The lawsuits filed against the first Executive Order were promptly amended to attack the second Executive Order.
One of these challenges was in Maryland, International Refugee Assistance Project v. Trump. There, Judge Theodore Chuang (a former Obama Administration oficial and an Obama nominee to the federal court) issued a Preliminary Injunction on March 15, 2017. For appeal to the Fourth Circuit, we filed a brief challenging Judge Chuang’s Injunction [International Refugee Assistance Project v. Trump (4th Cir. 17-1351), Amicus Brief in support of Trump, (March 31, 2017)].
Our brief made several points challenging Chuang’s ruling.
First, District Judge Chuang attempted to cover for the paucity of supporting immigration law authorities which would limit the President’s power, by citing to the days-old 9th Circuit decision, discussed above. He also cited another highly questionable opinion of District Judge Brinkema, appointed by President Clinton [Federal court rules against Trump’s immigration order because it discriminates against Muslims, by Ilya Somin, Washington Post, February 13, 2017]. Judge Brinkema is 72 years old, but has not yet taken senior status, in the Eastern District of Virginia. But a later decision in that same Virginia district, and another in Massachusetts, both refused to enjoin President Trump or put a hold on his ban [Virginia Judge Tees Up Travel Ban Argument for Top Court, by Erik Larson, David Voreacos, and Kartikay Mehrotra, March 24, 2017] and [Massachusetts judge won’t renew order halting Trump travel ban: reports, by Mark Hensch, The Hill, February 3, 2017].
Put simply, Chuang’s legal backing for the injunction was almost comically flimsy.
Second, Judge Chuang second-guessed the President on explicitly political grounds—claiming that Trump was engaged in an exercise of animus based on “explicit, direct statements of President Trump’s animus towards Muslims.” In part, this referred back to candidate Trump’s Muslim immigration statement of December 2015.
Finding Presidential “animus” was Judge Chuang’s way to avoid application of the Supreme Court’s rule in Kleindienst v. Mandel, 408 U.S. 753 (1972), that:
Congress has delegated conditional exercise of this [immigration] power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. [Mandel at 770. (Emphasis added).]
Our brief turned the issue of Presidential animus around on the Court, arguing:
Where would such inquiries end? If the President of the United States were to determine that Judge Chuang was a partisan Democrat who was agitated by the undoing of the work of a prior Administration in which he served in a senior capacity, could it be said that the judge was motivated by his “animus” toward the current President and his policies? Should the President then treat this novel and constitutionally unsupportable injunction as being invalid and unenforceable? Should the prior statements and acts of Judge Chuang be evaluated to determine if his service in the Obama Administration as deputy general counsel of the Department of Homeland Security from 2009 to 2014 colored his decision about an EO undoing the immigration policies of the last Administration?
Indeed, if judges are tasked with ferreting out judicial animus, what tools do they bring to that investigation? What qualifies them to make such determinations? Was Harvard Law Professor Alan Dershowitz correct in concluding: “[T]his wasn’t constitutional analysis. It was psychoanalysis”? [Impartiality of Federal Judge Who Blocked Trump EO May Be In Question, by Michael Patrick Leahy, Breitbart, March 21, 2017]
Third, Judge Chuang used the First Amendment’s Establishment Clause to do what it had never before been twisted and manipulated to do—to bar the disestablishment of a religion. The Establishment Clause has been used to challenge providing monetary benefits to parents who send their children to private religious schools and to prevent posting the Ten Commandments in a public building. But before President Trump’s Executive Order, it had never before been interpreted to prevent a government action which allegedly disfavors a religion.
There would be slightly more plausibility if the ruling had been based on the First Amendment’s Free Exercise Clause—but that would have made it even more difficult for the plaintiffs and the judge to reach their desired result. A person who has never set foot in the United States is not impaired in his religious practice by not being able to enter the United States. Mecca is in Saudi Arabia, not Maryland.
Oral argument in the Fourth Circuit sitting en banc took place on May 8, 2017 [Liveblog: International Refugee Assistance Project v. Trump, by Jane Chong, Lawfare, May 8, 2017]. Here again, the judges used statements from Press Secretary Sean Spicer and campaign statements from President Trump to challenge the ban, rather than looking at the text of the order itself [Judges Doubt Trump’s Travel Ban Motives, by Amy Davidson, The New Yorker, May 9, 2017]. Instead, Judge Henry Floyd [nominated by Barack Obama to the Court of Appeals and recommended by two Democrats and Lindsey Graham] suggested examining the text of the law and the Executive Order rather than Trump’s campaign statements was “willful blindness.”
Rather than actually examining whether a law is constitutional or whether the Chief Executive has legal authority, the judges seem engaged in an exercise to determine some esoteric hidden meaning and whether that hidden meaning conflicts with a liberal value system they are apparently compelled to impose by law.
We are awaiting a decision.
The other challenge pending is based on Hawaii v. Trump, where Judge Derrick Watson (District of Hawaii) issued a Temporary Restraining Order on March 15, 2017, claiming the executive order was based on “significant and unrebutted evidence of religious animus” on the part of the President. Judge Watson followed this up by issuing a Preliminary Injunction on March 29, 2017.
Judge Watson has particularly interesting connections. He was a classmate of Obama at Harvard Law School, both graduating in 1991. He is, of course, an Obama appointee,
This is the case now on appeal to the Ninth Circuit that will be heard on Monday. We filed a fourth amicus brief in support of the Trump immigration EOs on April 21, 2017.
The first section of that brief applies the Establishment Clause analysis used by Judge Watson to President Thomas Jefferson's action against the Barbary Pirates in 1801. Not surprisingly, it appears that Judge Watson's analysis would have justified enjoining President Jefferson, for engaging in a disestablishment of what was then referred to as "Mohammadism."
Footnote: Curiously, the various complaints filed in federal court is that they name President Trump as the lead defendant. It must help the fundraising efforts of Leftist groups to tell your supporters that you are suing President Trump personally.
However, the historic rule is that no suit is brought against the President—but rather should be filed against subordinate officers such as cabinet officers. This gives the court the ability to enjoin an administration official without putting the President of the United States under the authority of an obscure district court judge.
As Justice Scalia explained in his concurrence in Franklin v. Massachusetts, 505 U.S. 788, 828 (1992) “the district court inserts the judiciary into the foreign affairs of this nation and, in doing so, has ‘produce[d] a needless head-on confrontation[] between [a] district judge[] and the Chief Executive.’”
Nevertheless, to date none of the judges considering these challenges has exhibited the slightest reluctance to consider a suit filed against the President, or even to issue an injunction against the President telling him what he may and may not do.
Indeed, they seem to positively celebrate this entirely new power they have created for themselves.
It’s easy to be dispirited in the face of such reckless and arbitrary actions by those who are sworn to uphold the law. After recounting the various ways that the open-borders crowd have largely prevailed in numerous recent judicial battles, we wanted to conclude with Sir Winston Churchill’s famous “Never Give Up” exhortation. But, as is often the case in checking out such quotations, what he really said somewhat differed from conventional wisdom. Fortunately, as actually delivered, it is no less inspiring now for all who remain in this battle:
Never give in, never give in, never, never, never, never— in nothing, great or small, large or petty—never give in except to convictions of honor and good sense.
Bill Olson served in three positions in the Reagan administration. Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. Bill also serves as Editor of www.BiblicalGrid.com. They can be reached at wjo@mindspring.com or twitter.com/OlsonLaw.
