Ninth Circuit Ruling

It's been too long since we took the time
No one's to blame
I know time flies so quickly
--John Lennon

I view high profile court decisions as an opportunity for improving my understanding of the law, particularly as it relates to the Constitution and principles of liberty. These pages include reflections on several cases, including Obamacare, the Arizona immigration case, and the Zimmerman murder trial. The Ninth Circuit's recent decision to uphold a temporary restraining order on President Trump's travel ban provides another such opportunity.

The Trump's travel ban order is interesting to me because, at a high level, it pits freedom against security, a topic that has occupied this blog since its founding.

It also involves the Ninth Circuit. The Ninth Circuit is affectionately known to some as 'the Ninth Circus' because of its reputation to deliver some of the most unconstitutional rulings of any appellate court in the country (measured in part by the high percentage of its rulings that have subsequently been overturned by the Supreme Court). As such, its opinions often provide a useful contrast against which to evaluate legal correctness.

Much of the interest surrounding this case is Trump's campaign characterization of his executive order as a 'Muslim ban.' Trump's detractors, and the legal plaintiffs in the case, claim that this proves intent of discrimination on religious grounds. While this may of concern from a human standpoint, what matters from a legal standpoint is what is stated in the executive order. Plainly, there is no bias written into the order in this regard. Religious belief is not a basis for travel restriction; country of origin is. And although the Muslim faith pervades the several countries included in the ban, Muslims traveling from other countries are unaffected. Fortunately, although Ninth Circuit judges questioned federal lawyers about Trump's rhetoric and commented about it in their ruling, they did not base their opinion on this issue.

Did the plaintiffs, e.g., the state of Washington, even have standing in this case? The principle of standing holds that only persons legally injured by government conduct can sue to challenge legality. The Ninth Circuit ruling held that states can challenge federal immigration law on grounds that state institutions, such an universities, would be affected by the absence of students or faculty affected by the travel ban. This argument seems weak, and is analogous to Wal-Mart suing the government for taxes imposed on its customers because they would have less money to spend in the store. Moreover, state institutions are not the regulated party in this case. Instead, the plaintiffs are suing to block the enforcement of an executive order against other people, a situation for which there is little precedent.

A primary argument made by the plaintiffs is that the executive order violates due process rights of affected aliens. This is problematic for several reasons. One is that the president has been granted plenary authority by both the Constitution and by Congress under the Immigration and Naturalization Act (INA) to decide that aliens from particular nations present national security risks. Because they are unadmitted nonresidents, aliens have no constitutional right of entry into the United States.

The Ninth Circuit sidestepped this issue, arguing that aliens are being denied procedural due process in that they now have no 'notice or hearing' for making their case for entry. But aliens have no fewer procedural rights than they had under prior law. They can still apply for visas and protest cancellation of visas just as before. The executive order deals with substance, stating that aliens from several foreign countries will not be permitted to travel to the United States for a temporary period of time until security procedures are reviewed.

The Ninth Circuit spent several paragraphs explaining why the executive order might not be constitutional with respect to some groups, including green card holders, previously admitted aliens presently abroad, and even unlawful aliens now residing in the US. However, these groups represent a subset, perhaps even a small minority, of the scope of the executive order. Nonetheless, the law as written can be construed as incorrectly applying to some groups that are protected under the law.

The legal question is whether a law should be upheld when the scope, in terms of who is affected, has not been correctly specified. The court ruled, "Even though the TRO [the federal judge's block on the travel ban] may be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order."

I think the Ninth Circuit got this part right. Strike down a law (or uphold a restraining order) when it has been incorrectly specified. Don not try to recraft it from the bench. Parenthetically, recrafting it from the bench is precisely what the Roberts court did with Obamacare--not just once, but twice.

Since the appellate court decision, the Trump administration has signaled that they will not appeal the decision to the Supreme Court. This seems smart. Although it erred in much of its judgment, and it is questionable whether state plaintiffs in fact had legal standing to bring suit, the Ninth Circuit got its assessment of scope right.

In effect, the court has sent the executive order back to the president for a rewrite.

Ruling on Arizona Immigration Law

Let me in, immigration man
I won't toe you line today
I can't see it anyway
--Crosby & Nash

Yesterday the US Supreme Court voted 5-3 to strike down some portions of Arizona law seeking to deter illegal immigration. Mainstream media are widely reporting that this ruling upholds federal authority to set immigration policy and laws.

What isn't being widely reported is that, of the 14 sections that originally comprised the Arizona law, 11 still stand, and the High Court ruled against only a portion of the 12th section. Moreover, the portion of the section that cleared the Court was the right of police to question their immigration status--in and of itself likely to drive many illegal immigrants to leave Arizona.

It should also be noted that last year the Court cleared an earlier Arizona bill that requires employers to electronically verify the immigration status of potential employees.

As such, the Arizona law provides a Court-approved framework for other states that do not want to sit idly by while illegal immigrants help themselves to resources that states have reserved for their citizens.

That said, it is still disturbing that the Supreme Court struck down any provisions of Arizona SB 1070. In his dissenting opinion (begins on pdf p. 30), Justice Scalia argues that there is nothing unconstitutional in the provisions of SB 1070 under Court review.

The Constitution provides that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" (Article IV, Section 2). However, if one state had particularly lax citizenship standards, then that state would serves as a gateway for unwanted aliens to obtain entry and resources in other states. Therefore, the federal government was given authority "to establish a uniform Rule of Naturalization...throughout the United States" (Article I, Section 8, Clause 4).

As long as states are not in violation of federal law, then the power to exclude unwanted aliens rests with the states. As Justice Scalia discusses, no provisions of SB 1070 violate federal law. Absent such violation, he concludes that Arizona is within its jurisdication.

Moreover, he observes that the primary impetus behind Arizona's legislation has been the inability, or unwillingess, of the Federal government to adequately protect the state's borders. Justice Scalia questions, "Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement - or, even worse, to the Executive's unwise targeting of that funding?"

We can confidently surmise how the Framers would answer that question...

Based on events over the past few weeks, it appears that federal priorities to allocate scarce immigration enforcement resources are not the problem here. The Obama administration recently proclaimed that it will exempt some 1.4 million illegal immigrants aged 30 or less from federal immigration law enforcement. Justice Scalia observes that we can confidently conclude that this is not a decision grounded in cost cutting, as the administrative cost of verifying exemption must necessarily be deducted from the cost of enforcement.

Justice Scalia does not mention this, but this situation raises the question of how a president can pick and choose among the laws that he is constitutionally obligated to execute. What President Obama appears to be engaging in is discretionary rule.

Scalia ends by asking the central question: "Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?" He answers the question by filling the shoes of state attendees to the Constitutional Convention who, if a clause were written into Article 1 Section 8 that the President would obtain discretionary power over the immigration law enforcement, would surely have bailed from the convention.

The Justice concludes that Arizona has rightly moved to protect its sovereignty - not in contradiction of federal law, but in full compliance with it. "If securing its territory in this fashion is not within the power of Arizona, then we should cease referring to it as a sovereign State."

Razing Arizona

Won't you let me in, immigration man?
I won't toe your line today
I can't see it anyway
--Crosby, Stills, Nash & Young

A last minute ruling by a US District Court judge struck down key provisions of a pending Arizona statute designed to tighten monitoring of immigration status of people in the state.

Arizona argued that the legislation was necessary because of the federal government's failure to adequately enforce US laws to keep illegal immigrants out of the state. The state contended, with reasonable evidence to support its claim, that outsized and increasing proportions of in-state crimes are being committed by illegal immigrants. To increase the safety of its legal residents, Arizona sought more control over the detection process.

The federal government went to court to block enforcement of this law using two primary arguments. One was that the the Arizona statute would violate the liberty of legal residents who, under the new law, might be held by police authorities while their legal status is being determined. The other contest was that immigration law and enforcement is the domain of the federal government, not the states.

The judge's ruling highlights two primary issues. One involves the tradeoff between freedom and safety. The judge stated that "Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked."

Why the judge, a Clinton appointee, stopped at 'lawfully present aliens' and failed to include 'legal US citizens' is surprising to me, because any increase law enforcement aimed at promoting safety is likely to compromise freedom for the citizenry at large. That said, this ruling seems wholly consistent with Constitutional intent and the Bill of Rights--particularly the Fourth Amendment.

The philosophical tenet here is this: when faced with a matter that involves choosing between greater freedom and greater safety, the alternative that favors greater freedom will be chosen. Patrick Henry's infamous 'Give me liberty or give me death' remark captures this tenet well.

While wonderfully applied by the judge in this particular instance, one has to wonder why it isn't applied more consistently across the legal spectrum. Individual liberty is compromised by a broad range of government activities ranging from the Patriot Act to social security initiatives.

It is easy to conclude that the judicial process mirrors the political process at large: be consistent with a position only when it is politically convenient.

The other issue in the Arizona ruling concerns states' rights. The judge ruled "Even though Arizona's interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preemptive laws."

Heading to the Constitution, the extent to which immigration issues, particularly those related to enforcement, are the province of the federal government is unclear to me. Article 1 Section 8 grants Congress the power to "establish an Uniform Rule of Naturalization."

If indeed this power includes authority for writing and enforcing immigation procedures, then it seems to me that the key words above are 'uniform rule'. The implication is that any immigration rules need to be a) effective, b) equally applied across the entire country. Right now, I believe Arizona has a good argument that the current rules enacted by the US government are not working in their state, either because the law itself is ineffective or because it is being ineffectively enforced by federal officials.

This bids the question of when are states properly justified to take a preemptive (using ruling judge's words above) legal action when a federal law is being ineffectively executed by the central power? One thing I am certain of is that the Founders did not intend on making the states overly dependent on the federal government to the extent that the states would lose the bulk of their sovereignty.

Unfortunately, legislative and judicial rulings continue to transfer more authority from states to the central government at the expense of the Tenth Amendment.