Trump’s Or­der and the 9th Got it Wrong

The Kutztown Area Patriot - - OPINION - Arthur Gar­ri­son

On Fe­bru­ary 9th the po­lit­i­cal drama of Pres­i­dent Trump’s ex­ec­u­tive or­der took an odd turn when his op­po­nents trans­lated a po­lit­i­cal fight into a constitutional ques­tion and thus dragged the courts into the ring of bat­tle. This is noth­ing new. But I will leave dis­cus­sion of that po­lit­i­cal truth for an­other day.

Pres­i­dent Trump is­sued an ex­ec­u­tive or­der stop­ping im­mi­gra­tion from seven spe­cific coun­tries. He did so un­der a fed­eral statute - 8 USC § 1182(f), which states:

“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”

A lim­i­ta­tion on that power is noted in 8 U.S.C. § 1152(a) (1)(A) which states, re­gard­ing the grant­ing of visas, “no per­son shall re­ceive any pref­er­ence or pri­or­ity or be dis­crim­i­nated against in the is­suance of an im­mi­grant visa be­cause of the per­son’s race, sex, na­tion­al­ity, place of birth, or place of res­i­dence.”

The case was be­fore the 9th Cir­cuit on ap­peal by the gov­ern­ment ask­ing for an emer­gency stay on the Tem­po­rary Re­strain­ing Or­der (TRO) that was granted by the Dis­trict Court Washington. To pre­vail, the gov­ern­ment had to es­tab­lish that it was likely to pre­vail on the mer­its. The mer­its should have been based on sec­tions 1182 and 1152.

It is a le­gal maxim that if a gov­ern­ment ac­tion can be held law­ful or un­law­ful based on statu­tory in­ter­pre­ta­tion, the con­sti­tu­tion is not to be in­voked. In its brief the Trump Ad­min­is­tra­tion as­serted that the ex­ec­u­tive or­der was law­ful un­der sec­tion 1182, and the states of Washington and Min­nesota, in part, ar­gued that the ex­ec­u­tive or­der vi­o­lated sec­tion 1152. The stated goal of the ex­ec­u­tive or­der was, “to pre­vent infiltration by for­eign ter­ror­ists or crim­i­nals” and pur­suant to that goal, “I hereby pro­claim that the im­mi­grant and non­im­mi­grant en­try into the United States of aliens from [Iraq, Syria, Libya, So­ma­lia, Su­dan, Ye­men, and Iran] would be detri­men­tal to the in­ter­ests of the United States, and I hereby sus­pend en­try into the United States, as im­mi­grants and non­im­mi­grants, of such per­sons for 90 days.” The state re­sponse was that the “sus­pen­sion” was a vainly dis­guised “ban” on all Mus­lims, which is pro­hib­ited un­der sec­tion 1152.

The prob­lem is that the 9th Cir­cuit opin­ion by­passed this ar­gu­ment en­tirely. There was no men­tion of ei­ther statute or the le­gal ar­gu­ments that they pro­vide ei­ther side.

The court by­passed the true le­gal dis­pute and en­gaged in the Fifth Amend­ment ar­gu­ments that Washington and Min­nesota as­serted, in part, be­cause they had a weak ar­gu­ment stand­ing on sec­tion 1152 alone. The Fifth Amend­ment Due Process Clause pro­tects a per­son’s right to life, lib­erty and prop­erty and pre­vents the gov­ern­ment from tak­ing it with­out a hear­ing.

The opin­ion as­serted that un­der the Fifth Amend­ment Due Process Clause, the ex­ec­u­tive or­der vi­o­lated the rights of le­gal res­i­dents, cit­i­zens and aliens who wish to re­turn to the United States and travel from the United States. The Gov­ern­ment, in its pa­pers and at oral ar­gu­ment, as­serted that the ap­pli­ca­tion of the or­der to the first two groups was an er­ror in ap­pli­ca­tion and would no longer ap­ply to them. That should have made the en­tire is­sue re­gard­ing the or­der and its ap­pli­ca­tion to le­gal aliens and cit­i­zens moot! But the court held that since the or­der was ap­plied to cit­i­zens and le­gal aliens in the first two days of the or­der and there was no of­fi­cial procla­ma­tion from the Pres­i­dent him­self pre­vent­ing such ap­pli­ca­tion, the court could not take the word of a le­gal memo from the White House Le­gal Coun­sel that sim­i­lar ap­pli­ca­tion would not oc­cur in the fu­ture. As such, the ex­ec­u­tive or­der vi­o­lated the Fifth Amend­ment.

To make a long story short, there is no Fifth Amend­ment right for peo­ple who are not cit­i­zens or le­gal res­i­dents to as­sert in the first place, and in the sec­ond, aliens who are not in the United States have no right to a visa. The Fifth Amend­ment ap­plies to those who have prop­erty rights in the United States. That prop­erty right ex­ists by be­ing phys­i­cally present, hav­ing le­gal sta­tus or be­ing a cit­i­zen. It is true that il­le­gal aliens have a right to a hear­ing once in the United States, but that is only to de­ter­mine if they are il­le­gal and should be re­moved. It does not cre­ate a right for travel, and the right to a hear­ing does not trans­late into a right to come to the United States from an­other coun­try. To get around this the court held that aliens who have con­tracted with the state uni­ver­si­ties to come into the United States as stu­dents or teach­ers have cre­ated a Fifth Amend­ment Due Process prop­erty right to travel, that the state gov­ern­ments can de­fend on the aliens be­half.

Since the gov­ern­ment could not prove, to the 9th’s sat­is­fac­tion, that it would pre­vail on the due process claim be­cause it could not prove peo­ple from the seven coun­tries were a threat, they were not en­ti­tled to an emer­gency stay of the TRO. The Gov­ern­ment lost be­cause it was held to a due process test, not to whether its ex­ec­u­tive or­der could be sup­ported un­der sec­tion 1182. The court chose the wrong test.

But this er­ror may not be long-lived. A day af­ter the de­ci­sion, the Chief Judge of the 9th Cir­cuit in­formed the Gov­ern­ment and the states of Washington and Min­nesota that a judge on the court had “made a sua sponte re­quest that a vote be taken as to whether the or­der is­sued by the three judge mo­tions panel . . . should be re­con­sid­ered en banc.” The court ex­plained in a press re­lease that “un­der Fed­eral Rules of Ap­pel­late Pro­ce­dure and the Ninth Cir­cuit Gen­eral Or­ders, a cir­cuit judge can also re­quest that a vote be held on whether a de­ci­sion should be re­heard by an en banc panel, even if the par­ties have not re­quested it.” This pro­ce­dure is termed a “sua sponte en banc call.” The Chief Judge’s or­der gave both par­ties a dead­line of Fe­bru­ary 16th “set­ting forth their re­spec­tive po­si­tions on whether this mat­ter should be re­con­sid­ered en banc.” The court ex­plained in its re­lease that “af­ter the briefs are filed, a vote is sched­uled on the en banc call . . . . If a ma­jor­ity of the ac­tive, non-re­cused judges vote in fa­vor of re­hear­ing en banc, then the case is re­heard by the

en banc court . . . . The en banc court con­sists of the Chief Judge, and ten non­re­cused judges who are ran­domly drawn.”

With such a re­quest it is al­most cer­tain that the 9th will re­view the de­ci­sion en banc. Be­cause many be­lieve the panel de­ci­sion was wrong on the law, there is a good chance this de­ci­sion will be over­ruled. Dr. Arthur Gar­ri­son is an as­sis­tant pro­fes­sor of crim­i­nal jus­tice at Kutz­town Univer­sity. This piece is the work of Dr. Gar­ri­son and does not re­flect the opin­ions of Kutz­town Univer­sity or its fac­ulty, staff, stu­dents or alumni.

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