STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants.
No. 17-35105
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MAR 15 2017
D.C. No. 2:17-cv-00141, Western District of Washington, Seattle
Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges.
This court in a published order previously denied a motion of the government for a stay of a restraining order pending appeal. 847 F.3d 1151 (9th Cir. 2017). That order became moot when this court granted the government‘s unopposed motion to dismiss its underlying appeal. Order, Mar. 8, 2017. No party has moved to vacate the published order. A judge of this court called for a vote to determine whether the court should grant
This order is being filed along with the concurrence of Judge Reinhardt and the dissent of Judge Bybee. Filings by other judges may follow.
Washington v. Trump
No. 17-35105
U.S. COURT OF APPEALS
MAR 15 2017
I concur in our court‘s decision regarding President Trump‘s first Executive Order - the ban on immigrants and visitors from seven Muslim countries. I also concur in our court‘s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.
Washington v. Trump
No. 17-35105 (Motions Panel–February 9, 2017)
U.S. COURT OF APPEALS
MAR 15 2017
I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel‘s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.
The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President‘s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
I
In this section I provide background on the source of Congress‘s and the President‘s authority to exclude aliens, the Executive Order at issue here, and the proceedings in this case. The informed reader may proceed directly to Part II.
A
“The exclusion of aliens is a fundamental act of sovereignty.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982). Congress has the principal power to control the nation‘s borders, a power that follows naturally from its power “[t]o establish an uniform rule of Naturalization,”
In the Immigration and Nationality Act of 1952, Congress exercised its authority to prescribe the terms on which aliens may be admitted to the United States, the conditions on which they may remain within our borders, and the requirements for becoming naturalized U.S. citizens.
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.
In Executive Order No. 13769, the President exercised the authority granted in
B
Three days after the President signed the Executive Order, the States of Washington and Minnesota brought suit in the Western District of Washington seeking declaratory and injunctive relief on behalf of their universities, businesses, citizens, and residents that were affected by the Executive Order in various ways. The States also sought a temporary restraining order (TRO). On February 3, 2017, following a hearing, the district court, without making findings of fact or conclusions of law with respect to the merits of the suit, issued a nationwide TRO against the enforcement of §§ 3(c), 5(a)–(c), (e). The district court proposed further briefing by the parties and a hearing on the States’ request for a preliminary injunction.3
Among other things, the panel drew three critical conclusions. First, the panel held that, although we owe deference to the political branches, we can review the Executive Order for constitutionality under the same standards as we would review challenges to domestic policies. See id. at 1161–64. Second, the panel found that the States were likely to succeed on their due process arguments because “the Executive Order [does not] provide[] what due process requires, such as notice and a hearing prior to restricting an individual‘s ability to travel.” Id. at 1164. Third, the panel found that there were at least “significant constitutional questions” under the Establishment Clause raised by the fact that the seven countries identified in the Executive Order are principally Muslim countries and the President, before and after his election, made reference to “a Muslim ban.” Id. at 1168.
Ordinarily, when an appeal is dismissed because it has become moot, any opinions previously issued in the case remain on the books. U.S. Bancorp Mortg. Co. v. Bonner Mall P‘ship, 513 U.S. 18, 26 (1994) (“Judicial precedents are presumptively correct and valuable to the legal community as a whole. They . . . should stand unless a court concludes that the public interest would be served by a
II
The panel began its analysis from two important premises: first, that it is an “uncontroversial principle” that we “owe substantial deference to the immigration and national security policy determinations of the political branches,” Washington, 847 F.3d at 1161; second, that courts can review constitutional challenges to executive actions, see id. at 1164. I agree with both of these propositions. Unfortunately, that was both the beginning and the end of the deference the panel gave the President.
How do we reconcile these two titan principles of constitutional law? It is indeed an “uncontroversial principle” that courts must defer to the political judgment of the President and Congress in matters of immigration policy. The Supreme Court has said so, plainly and often. See, e.g., Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.“); Harisiades, 342 U.S. at 590 (“[N]othing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require us to equate our political judgment with
The Supreme Court has given us a way to analyze these knotty questions, but it depends on our ability to distinguish between two groups of aliens: those who are present within our borders and those who are seeking admission. As the Court explained in Leng May Ma v. Barber,
It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, . . . and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely “on the threshold of initial entry.”
357 U.S. 185, 187 (1958) (quoting Mezei, 345 U.S. at 212). The panel did not
A
The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972). In Mandel, the government had denied a visa to a Marxist journalist who had been invited to address conferences at Columbia, Princeton, and Stanford, among other groups. Mandel and American university professors brought facial and as-applied challenges under the First and Fifth Amendments. The Court first made clear that Mandel himself, “as an unadmitted and nonresident alien, had no constitutional right of entry.” Id. at 762. Then it addressed the First Amendment claims of the professors who had invited him. Recognizing that “First Amendment rights [were] implicated” in the case, the Court declined to revisit the principle that the political branches may decide whom to admit and whom to exclude. Id. at 765. It concluded that when the executive has exercised its authority to exclude aliens “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment
In this case, the government argued that Mandel provided the proper framework for analyzing the States’ claims. The panel, however, tossed Mandel aside because it involved only a decision by a consular officer, not the President. See Washington, 847 F.3d at 1162 (“The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather the States are challenging the President‘s promulgation of sweeping immigration policy.“). Two responses. First, the panel‘s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head. We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision? With a moment‘s thought, that principle cannot withstand the gentlest inquiry, and we have said so. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 n.1 (9th Cir. 2008) (“We are unable to distinguish Mandel on the grounds that the exclusionary decision challenged in that case was not a consular visa denial, but rather the Attorney General‘s refusal to waive Mandel‘s inadmissibility. The holding is plainly stated in terms of the power delegated by Congress to ‘the
Worse, the panel‘s decision missed entirely Fiallo v. Bell, 430 U.S. 787 (1977), and Fiallo answers the panel‘s reasons for brushing off Mandel. In Fiallo, the plaintiff brought a facial due process challenge to immigration laws giving preferential treatment to natural mothers of illegitimate children. As in Mandel, the constitutional challenge in Fiallo was “based on [the] constitutional rights of citizens.” Id. at 795. The Court acknowledged that the challenge invoked “‘double-barreled’ discrimination based on sex and illegitimacy.” Id. at 794. Either ground, if brought in a suit in a domestic context, would have invoked some kind of heightened scrutiny. See Craig v. Boren, 429 U.S. 190, 197 (1976) (sex
The panel‘s holding that “exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard,” id., is simply irreconcilable with the Supreme Court‘s holding that it could “see no reason to review the broad congressional policy choice at issue [there] under a more exacting standard than was applied in Kleindienst v. Mandel,” Fiallo, 430 U.S. at 795.
Fiallo wasn‘t the only Supreme Court case applying Mandel that the panel missed. In Kerry v. Din, 135 S. Ct. 2128 (2015), the Court confronted a case in
The importance and continuing applicability of the framework set out in Mandel and applied in Fiallo and Din has been recognized in circumstances remarkably similar to the Executive Order. After the attacks of September 11, 2001, the Attorney General instituted the National Security Entry-Exit Registration System. That program required non-immigrant alien males (residing in the United States) over the age of sixteen from twenty-five countries—twenty-four Muslim-majority countries plus North Korea—to appear for registration and fingerprinting. One court referred to the program as “enhanced monitoring.” See Rajah v. Mukasey, 544 F.3d 427, 433–34, 439 (2d Cir. 2008) (describing the program).7 The aliens subject to the program filed a series of suits in federal courts across the
Citing Fiallo and applying the Mandel test, the Second Circuit held that “[t]he most exacting level of scrutiny that we will impose on immigration legislation is rational basis review.” Id. at 438 (alteration in original) (citation omitted). The court then found “a facially legitimate and bona fide reason for” the registration requirements because the countries were “selected on the basis of national security criteria.” Id. at 438–39. The court rejected as having “no basis” the petitioners’ claim of religious animus. Id. at 439. The court observed that “one major threat of terrorist attacks comes from radical Islamic groups.” Id. It added:
Muslims from non-specified countries were not subject to registration. Aliens from the designated countries who were qualified to be permanent residents in the United States were exempted whether or not they were Muslims. The program did not target only Muslims: non-Muslims from the designated countries were subject to registration.
Id. Finally, the court refused to review the program for “its effectiveness and wisdom” because the court “ha[d] no way of knowing whether the Program‘s enhanced monitoring of aliens ha[d] disrupted or deterred attacks. In any event,
The combination of Mandel, Fiallo, and Din, and the history of their application to the post-9/11 registration program, is devastating to the panel‘s conclusion that we can simply apply ordinary constitutional standards to immigration policy. Compounding its omission, the panel missed all of our own cases applying Mandel to constitutional challenges to immigration decisions. See, e.g., Cardenas, 826 F.3d at 1171 (discussing Mandel and Din extensively as the “standard of judicial review applicable to the visa denial” where petitioner alleged
B
Applying Mandel here, the panel‘s error becomes obvious: the Executive Order was easily “facially legitimate” and supported by a “bona fide reason.” As I have quoted above,
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.
Justice Kennedy indicated in Din that it might have been appropriate to “look behind” the government‘s exclusion of Din‘s husband if there were “an affirmative showing of bad faith on the part of the consular officer who denied [the
Even if we have questions about the basis for the President‘s ultimate findings—whether it was a “Muslim ban” or something else—we do not get to peek behind the curtain. So long as there is one “facially legitimate and bona fide” reason for the President‘s actions, our inquiry is at an end. As the Court explained in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999):
The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country by focusing on that country‘s nationals—and even it if did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy.
Id. at 491; see Mezei, 345 U.S. at 210–12; Knauff, 338 U.S. at 543.
The panel faulted the government for not coming forward in support of the Executive Order with evidence—including “classified information.” Washington, 847 F.3d at 1168 & nn.7–8. First, that is precisely what the Court has told us we
The panel‘s errors are many and obvious. Had it applied the proper standard, the panel should have stopped here and issued the stay of the district
III
We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.
Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government‘s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel‘s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable
I dissent, respectfully.
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