Law is on DOJ's side in court showdown

Justice Department appeals travel ban ruling
Justice Department appeals travel ban ruling

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Justice Department appeals travel ban ruling 01:44

Story highlights

  • Kayleigh McEnany: After hearing oral arguments, Ninth Circuit should rescind temporary restraining order on travel ban
  • With decision, the nation will learn whether personal politics or legal doctrine will carry the day, she writes

Kayleigh McEnany is a CNN commentator and a graduate of Harvard Law School. She studied politics at Oxford University. The opinions expressed in this commentary are solely hers.

(CNN)The Ninth Circuit Court of Appeals heard oral arguments Tuesday evening on whether Judge John Robart's temporary restraining order (TRO), which halts implementation of President Donald Trump's temporary freeze on travel from terror-prone countries, should stand. In hearing oral arguments, the Ninth Circuit -- the nation's most liberal court with the reputation as its most reversed -- ought to heed the words of Justice Antonin Scalia, notably quoted by President Trump's nominee to the Supreme Court, Neil Gorsuch: "If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach."

Kayleigh McEnany
Indeed, if the Ninth Circuit rules as the law directs, it will rescind the TRO on President Trump's travel freeze, a decision several of the sitting judges might find unpalatable.
As Robart pointed out in his scantily explained order, a TRO is an "extraordinary remedy" that is issued "to preserve the status quo before the court holds a hearing on a motion for preliminary injunction." He notes that a TRO requires the plaintiff to prove that "he is likely to succeed on the merits," among other things.
Herein lies the problem: the plaintiff is far from likely to succeed in invalidating President Trump's order and thus is not entitled to a TRO.
As a preliminary matter, it is likely that the plaintiff -- the state of Washington -- does not even have standing to sue since a state may not sue "as the representative of its citizens." But even if Washington is able to bring the case, it should lose on the merits. The plaintiff alleges several causes of action, among them that President Trump's order denies equal protection and violates a congressional statute.
On the equal protection claim, the plaintiff argues, "The executive order was motivated... by a desire to harm a specific group... The discriminatory terms are arbitrary and cannot be sufficiently justified by federal interest."
First, the motive of the order was to protect US citizens from future terrorist attacks after the intelligence community has repeatedly warned of ISIS's efforts to infiltrate the refugee program. There is indeed a federal interest in preventing attacks like the one waged by a Somali immigrant inspired by ISIS on the campus of Ohio State, and the power to address future threats rests in the President's broad, expansive foreign affairs powers.
Second, the allegation that noncitizens seeking entry to the United States have equal protection rights guaranteed under the Fifth Amendment is highly questionable. The Supreme Court stated plainly in Landon v. Plasencia, "an alien seeking initial admission has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative."
In addition to the equal protection claim, the state of Washington refers to a law passed by Congress (8 U.S.C. § 1152 (a)(1)(A)), which states, "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."
President Trump's executive order does indeed make delineations based on "place of residence," but there is an alternate statute (8 U.S.C. § 1182(f)), which reads, "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."
The plain text of these two statutes suggests a conflict in the law. On one hand, Congress bars the visa discrimination on the basis of residence. On the other hand, Congress states that the President can bar "any class of aliens" for "such period as he shall deem necessary."
So which law governs President Trump's executive orders? The Supreme Court has stated that courts "must read the [conflicting] statutes to give effect to each if [it] can do so while preserving their sense and purpose." And even though the residence limitation was passed after the presidential power statute, "repeals by implication are not favored... and will not be found unless an intent to repeal is 'clear and manifest,'" according to the Court.
Congress never stated its attempt to repeal the President's ability to bar "any class of aliens." Moreover, per the Court's instructions, both provisions can be given effect if the Court reads §1182(f) as a specific exception to the more general §1152(a)(1)(A), as the Department of Justice has suggested. Reading the two provisions together would read as follows: "no persons... Shall be discriminated against in the issuance of an immigrant visa because of... Place of residence" except where "the President finds that the entry... of any class of aliens into the United States would be detrimental." In other words, the statutes are compatible and should be construed that way.
There is already precedent for such a reading in the actions of President Jimmy Carter. Carter, for his part, "instructed his administration to 'invalidate all visas issued to Iranian citizens for future entry into the United States, effective today.'" Additionally, Carter required Iranian students to register with immigration officials. Ruling on the latter order, the DC Court of Appeals upheld the action, stating, "Distinctions on the basis of nationality may be drawn in the immigration field by the Congress or the Executive. So long as such distinctions are not wholly irrational they must be sustained."
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The Trump administration can argue that its distinction based on nationality is not "wholly irrational," since it temporarily halts immigration from seven countries designated by the Obama administration as ineligible for the Visa Waiver Program due to terrorism concerns.
As the plaintiff is unlikely to succeed in arguing that President Trump's executive order is statutorily or constitutionally prohibited, the Ninth Circuit should rescind the temporary restraining order. The nation will soon learn whether personal politics or legal doctrine will carry the day.