Seven Sexy Things You Need to Know About the 9th Circuit’s 3–0 Ruling
In the spirit of a tabloid magazine cover, I felt compelled to offer these highlights, somewhat sensationalized.
1. BE CAREFUL WHAT YOU WISH FOR.
The Government had to get over the hump of even having the 9th Circuit hear the case, because it was premature — the normal next step after a TRO is an injunction hearing that would determine whether the Executive Order would be enjoined through trial.
The Government argued extraordinary circumstances existed to bypass this procedure.
The Government won on this do-or-die issue. So much for the liberal court! The Government wanted to turn this emergency proceeding into an actual review of the TRO, as if it were THE preliminary injunction. They won on this threshold question, and like Super Mario, they got to move to the next level — a review by the 9th Circuit. What could go wrong?
Oops. Everything. As Dr. Phil might say, how’s that working for you?
2. UNREVIEWABLE, OR, WAIT, I THOUGHT I WAS KING?
In a presage to a recent poll that 51% of Trump supporters believe he should be able to ignore a court’s order, the Government argued that the President has “unreviewable authority to suspend admission of any class of aliens” even if those actions potentially contravene constitutional rights and protections. (If you’ve been trolled on the internet by Trump supporters, they have unfailingly posted the 1950’s-era alien statute without comment as if they are dropping the microphone).
This ridiculousness of Government’s position got slapped hard. Plenty of cases to read in the decision, but I like these two quotes to make the point: “See Ex parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”); Ex parte Milligan, 71 U.S. 2, 120–21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”).
Isn’t this the most basic reflection of who we are as a republic? Actually welded together — made stronger — by our separation of powers? And upon further reflection, aren’t those of you in the “love it or leave it crowd” misapprehending that you might actually be on the “leave it” part of the equation? You get that, right? Just remember, if you leave, it could be harder to get back in.
The 9th tried to summarize it in easy words in a short sentence: “it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Okay, the words aren’t that short. Translating: The Court’s actual job is to trump Trump if he violates Constitution.
3. NOT PUNNY. NOT PUNNY AT ALL.
The 9th Circuit snuck in a pun: “To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war.”
Not “automatically trump.” Heh heh. One wonders if the famous Ferris Beuller score was playing in the background while the 9th was sliding this poetry into a sure-to-be-famous opinion: “Oh, yeah. Beautiful. Chickah-Chickah….”
4. HE TWEETS, THEREFORE HE IS. CREATING EVIDENCE.
The President’s words. Are evidence. Of his intent. To discriminate.
Really? We had to argue this, Government? You think this is a political issue? Any first year law student can get this evidence question right. Here’s what the unanimous court said:
“The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
Supported by a slew of US Supreme Court cases. But really, isn’t is kind of like an expensive research study to show that coffee makes you more likely to stay up late? We needed such a study to tell us what we already know?
5. IRREPARABLE HARM, OR, SORRY THE DOG ATE MY EVIDENCE.
The Government needed to present evidence of irreparable harm — not bluster, not fake news, not bullying — evidence. This is court. The place the President keeps saying he wants to “see you,” as in “see you in court.” And in court — and in this Court — you present evidence.
They did not. Present. Any. Evidence. Zero. Nada. Bupkis. Zippo. Null. Zilch.
So, the easy result for the 9th: “The Government has pointed to no evidence that any alien from any of the countries named in the Order perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree.”
This is not a liberal or conservative court reaching a political result. This is a 67–0 halftime score in the Super Bowl because one team never put its offense on the field.
6. BUT OBAMA DID IT!
You’ve likely been internet-trolled on this one too. President Obama designated the same 7 countries of concern in an earlier Executive Order. (I guess the trolls love President Obama on this one, which must be hard — kind of a twisted homage to those childhood tantrums complaining that if Suzie gets to go to the dance, why can’t I?) The relevance (or lack thereof) was an easy call, and the 9th employed the laws of physics and time travel to explain: “Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.”
Essentially, the 9th is telling the Government, “2015 called and wants its actual facts back.”
7. WHO LOVES SECRETS? WE LOVE SECRETS! SHOW US YOUR SECRETS!
Remember Senator Joseph McCarthy’s “I have in my hand a list of 205” communists that he wouldn’t show anybody (saying he didn’t have the time)? Here, the Government channeled its inner McCarthy and claimed it had classified information about the terrorist threats that explain the irreparable harm. That it didn’t provide to the Court. But the Court rebuffed the tactic, and explained it has an appetite for the secret sauce deeper than TMZ wants an advance peak at Rosie O’Donnell’s Steve Bannon debut:
“In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that.”
What really happened here? The Court called the Government’s bluff. The Government knew full well it could deliver information under seal, and unlike a White House meeting, there’d be no leak from the Court the next day. If the evidence existed, it would have — and should have — been provided.
CONCLUSION
The President’s quickly stated, “we’ll see you in court.” Which is somewhat odd — as he’s been in court. He knows that, right?
Perhaps a quick rewrite of the Order is in order. You’d only have to set your ego aside and put the people’s business — and safety — above the need to “win.”
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