The 9th Circuit Got it Horribly Wrong. Here's How.

There is a running joke in legal circles: If you want to ensure that you’ll prevail before the U.S. Supreme Court, lose in front of the Ninth Circuit Court of Appeals.  The single-most overturned federal appellate court in America, the so-called “Nutty Ninth” or “Ninth Circus” has earned its reputation for unfathomable rulings by getting overturned on appeal a staggering 80% of the time.

Unsurprisingly, their ruling on President Trump’s executive order on refugee resettlements and visas from seven Middle Eastern and African nations ignores the clear language of the Constitution and federal statute and substitutes political posturing for any semblance of actual jurisprudence.

In short, it is a ridiculous order that should be one of the 80% of the Ninth Circuit’s decisions overturned by the Supreme Court.

As the Ninth noted in its decision:

To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay.

This means that the Trump Administration needed to show that it had the Constitutional and legal authority to do what it did and that there was a significant public interest in issuing its order.

Truthfully, there could be no public interest greater than the protection of the public from threats to its safety, and President Trump’s order is explicitly a response to the threat of terrorists sneaking into the United States amid the flow of refugees from the seven countries named in the order.

On numerous occasions, the Islamic State of Iraq and Syria has announced its intentions to attack western nations by first getting its fighters in and then plotting attacks.

This threat is hardly theoretical.  Terrorists posing as refugees killed 137 people in a massive attack on Paris in November of 2015 and killed 32 others in bombings in Brussels four months later. 

In the United States, the Boston Marathon bombers, Dzhokhar and Tamerlan Tsarnaev, were admitted into the country as refugees from Chechnya who were living in Kazakhstan. 

Less than three months ago, a Somali refugee slammed his car into Ohio State University students and began stabbing them—injuring 13 before a campus police officer shot him to death. 

Since the 9/11 attacks 16 years ago, a Senate subcommittee found that of the 580 people arrested for terror activities, 380 are foreign-born.

Of the 380 foreign-born, at least 24 were initially admitted to the United States as refugees, and at least 33 had overstayed their visas. Additionally, of those born abroad, at least 62 were from Pakistan, 28 were from Lebanon, 22 were Palestinian, 21 were from Somalia, 20 were from Yemen, 19 were from Iraq, 16 were from Jordan, 17 were from Egypt, and 10 were from Afghanistan.

Because ISIS has indicated its intent to smuggle terrorists into foreign nations as refugees and has succeeded (with deadly consequences) in France and Belgium, it is logical that a similarly lax screening and vetting process in the United States would be more likely to result in an ISIS attack.

This threat to United States security is not merely theoretical; at least 24 terrorists posing as refugees have been arrested for terrorist activities since 9/11.

Moreover, because the seven nations President Trump’s executive order identified—Iraq, Syria, Iran, Libya, Yemen, Somalia, and Sudan—have for years refused to cooperate with the United States in providing background information on their citizens who apply for either U.S. visas or refugee status in the U.S., it is perfectly reasonable to stop refugee resettlement and visas from those countries for such time as the United States deems necessary to improve its background checks on those nations’ citizens.

This refusal to cooperate with the U.S. Government on background checks formed the basis of those seven nations’ inclusion in The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 and its subsequent update the following year.  Not only was that Act approved by Congress and signed by President Obama, it was implemented without a single legal challenge.

President Trump’s executive action simply builds off of that and very reasonably allows a temporary pause in visa entry and refugee resettlement from nations previously identified as dangerous so that a new Executive Branch can develop effective ways of screening for terrorists.  Viewed another way; a temporary pause to do so could conceivably lead to more visas and refugees from the seven named countries once the United States is certain that those nations’ citizens seeking entry into this country are not terrorists in refugees’ clothing.   

Therefore, a stay in this executive order would cause clear and demonstrable harm to the new Trump Administration’s ability to implement terror screening procedures and potentially put American citizens in danger.

As the Ninth Circuit itself admitted in its ruling, “courts owe considerable deference to the President’s policy determinations with respect to immigration and national security.”  This means that the President, who has the sole Constitutional authority to enforce the laws of the United States, has wide latitude to implement policies that in his determination are in the best interests of the citizens of the United States, particularly on issues of immigration and national security.

Yet the Ninth Circuit gives President Trump no considerable deference...or really any deference at all.

Instead, it ignores the clear weight of the factual and statutory evidence and holds “that the [Federal] Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”

This is based on an overly broad interpretation of the ability of the states of Washington and Minnesota to sue the federal government over a duly enacted executive order pursuant to a valid federal statute.

Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.  Washington also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do.

This is a ridiculous argument on its face.  Were this truly a “Muslim ban,” the order would have extended to every Muslim-majority nation.  Yet countries like Saudi Arabia, Afghanistan, The United Arab Emirates, Egypt, Pakistan, and Jordan were not included.  In fact, as Ninth Circuit Court Judge Richard Clifton noted during oral arguments, the seven nations named in the executive order comprise only 15% of the world’s Muslim population.  How can the order be an effective “Muslim ban” if it doesn’t apply to 85% of the world’s Muslims?

It is also stunning that Washington and Minnesota would cite the Immigration and Nationality Act (INA) in their argument, because that act—now codified in 8 U.S.C. § 1182 gives the President the explicit authority to do exactly what President Trump did in his executive order.  8 U.S.C. § 1182(f) could not possibly be any clearer:

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.

Shockingly, the Ninth Circuit doesn’t refer to this statute once in its opinion—perhaps an indication that the court does not wish to acknowledge that President Trump has the absolute Constitutional and legal authority to “by proclamation, and for such period as he shall deem necessary” do exactly what he did.

Yet while the Ninth Circuit pays lip service to the notion that it must pay “considerable deference to the President’s policy determinations with respect to immigration and national security,” it does no such thing—attempting an end run around this clear statute through a dangerously broad interpretation of both the legal standing of states to sue the federal government and the Constitutional rights that may be conferred upon non-citizens.  

In order to demonstrate that one has standing to sue, a court must determine that the plaintiff has suffered some measurable harm through the defendant’s action.  In other words, the person or entity suing must be able to show that they themselves suffered an actual harm—not some theoretical harm that they or someone else might possibly suffer because of the defendant’s action.

Washington and Minnesota claim that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries.”

The Court agreed with the states, who argued that the executive order as it was enforced against students and teachers with green cards was unlawful and this is most likely the correct interpretation.  Those who have already been screened and have already been granted green cards for the purposes of teaching or attending school in the United States should not have been detained under this executive order.

However, the Ninth Circuit then grants a stunningly broad interpretation of the Due Process Clause of the Constitution’s Fifth Amendment:

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).

That’s right: The Ninth Circuit believes that the “possible due process rights” of illegal immigrants can invalidate a President’s authority on immigration and national security under 8 U.S.C. § 1182(f).

And its interpretation of what it claims to be the prevailing legal precedent—Zadvydas v. Davis—is woefully misguided.  Zadvydas dealt with a specific issue and was thus limited to that issue: The indefinite detention of deported immigrants whom no other country would take.

President Trump’s order did not detain anyone without due process for an indefinite period of time.  Quite the contrary, it set clearly defined and perfectly reasonable time limits: 90 days for the suspension of visas from the seven named countries and 120 days for the suspension of the refugee admission program.  Even the indefinite suspension of refugee resettlement from Syria is very obviously allowed under 8 U.S.C. § 1182(f), which grants the President the power to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” for “such period as he shall deem necessary.”

If the President deems an indefinite period as necessary to protect the national security interests of the United States, then courts such as the Ninth Circuit owe “considerable deference to the President’s policy determinations with respect to immigration and national security.”

But the Ninth Circuit grants President Trump no such deference; instead deferring to the states’ tenuous claims that they might potentially suffer some largely unspecified harm to their universities if the President’s executive order is enacted.

In the Ninth Circuit’s own words, it owes deference to a presidential action, not a state’s argument.  And it is a perversion of the notion of Third Party Standing (in which a state can sue on behalf of its citizens) to hold that Washington and Minnesota can sue the federal government on behalf of a class of immigrants—even illegal immigrants—who have yet to come into the United States.

This would grant the states nearly limitless authority to challenge the federal government’s immigration and national security policies as they pertain to non-citizens.  The Supremacy Clause of the Constitution and the President’s Article II power to enforce the laws of the United States make clear that states can only act in contravention of those laws or presidential actions if those laws or actions violate the Constitutional rights of their citizens.

Broadening this to include the Constitutional rights of those who do not enjoy Constitutional rights as U.S. citizens and/or residents of the states suing the federal government sets a dangerous precedent for state interference in matters that are under the sole Constitutional purview of the federal government and, specifically, under the purview of the Executive Branch.

That Branch is owed considerable deference in matters of national security and immigration such as President Trump’s executive order.  But by refusing to grant such deference and broaden the authority of states to sue the federal government under ridiculous claims of Constitutional rights for non-citizens and even illegal immigrants, the Ninth Circuit has exceeded its jurisprudential authority and issued a ruling based on a policy preference instead of adherence to the Constitution and the clear letter of federal law.

It has very clearly lived up to its nickname, as the “Nutty Ninth” has issued a nutty decision which, like 80% of its nutty decisions, must be struck down on appeal to the Supreme Court.


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