The 9th Circuit Court of Appeals has ruled unanimously to keep in place a hold on the Trump administration’s travel ban. CNN legal analysts and contributors weigh in on the decision. The views expressed here are solely those of the authors.
Paul Callan: The real implicit threat to President Trump
The case is a stunning setback for the Trump administration and an aggressive assertion of judicial power by the 9th Circuit Federal Appeals panel. The Court clearly indicated that while it may on occasion defer to the president in matters of national security, it always under the proper circumstances retains the constitutional power to review the legality of presidential actions. The wording of the decision was designed to set President Trump back on his heels with a lesson regarding the role of the judiciary as a co-equal branch of government and the sole authority on the Constitution.
In many ways, the decision was a reminder of the principle first articulated by Chief Justice John Marshall in the case of Marbury v. Madison that the Supreme Court is the final arbiter of Constitutional interpretation in the American democratic system of government.
The real threat implicit in the court’s reference to the relevance of the President’s “numerous statements” that he would impose a “Muslim Ban” will likely subject Mr. Trump to subpoena and questioning under oath about conversations with campaign staff, his family and even supporters such as former NYC Mayor Rudy Giuliani and NJ Governor Chris Christie. The potential for embarrassing revelations is so substantial that the court’s decision may compel a total rewrite of the Executive Order to render the suit moot.
Paul Callan is a CNN legal analyst and a former media law professor.
Joey Jackson: With ‘SEE YOU IN COURT,’ the president gets it wrong
After the 9th Circuit’s unanimous ruling, President Trump tweeted “SEE YOU IN COURT.” We can only infer from this tweet that the President will march forward in his battle to get his way. One option would be to take the fight to the U.S. Supreme Court, which only has eight justices at the moment– of the full compliment of nine. And a tie in the Supreme Court would mean that the Appellate Court ruling would stand. The Court battle he’s spoiling for will be a far more challenging undertaking than tweeting seems to be.
The President also commented that he felt the appellate decision was “political.” On that score, he’s simply wrong. The District Judge who initially ruled against him was appointed George W. Bush and one of the three judges on the appellate panel was appointed by George H.W. Bush–both Republicans like the President. And when a decision is political, it’s usually founded on ideology and circuitous legal logic at best. But a reading of the decision itself demonstrates that it is well grounded in logic and sound judicial reasoning. Not exactly the makings of a “political” conspiracy.
One of the central arguments of the President was the need to have clear and unfettered authority in the area of national security. But the Court made clear that while the President deserves deference in this area, he is not entitled to imperial rule. And while the President’s emissaries made the argument that he is privy to information that no one else has; the Court countered that he could have shared it with them under seal to ensure that it be kept secret— as custom dictates. That, however, did not happen. Without any concrete basis in which to justify the President’s Executive order, the Court struggled to see how it could be considered necessary.
The 9th Circuit did not seek to second-guess the President in their decision. Instead, they provided a firm check on Presidential authority. The rule of law prevailed. And it started with two states, Washington and Minnesota, who sought to apply that law, rely upon the principles of democracy, and remind the world why everyone looks to come to the United States in the first place.
Joey Jackson is a criminal defense attorney and a legal analyst for CNN and HLN.
Page Pate: A big win for the states
This is a big win for the states.
The most important part of the decision is the clear ruling that the travel ban can be challenged in court. The judges rejected the Trump administration’s arguments that the two states challenging the ban, Washington and Minnesota, didn’t have standing, and that the courts couldn’t review a presidential order on immigration policy if the claimed basis was “national security.” Judges don’t like to be told what cases they can hear.
The fact that the decision was “per curiam” means all the judges agreed with the result, but they wanted to avoid assigning any particular judge to write the opinion, probably so Trump couldn’t single out one of the judges for criticism.
I’m somewhat surprised the court took the time to breathe life into the constitutional arguments. It wasn’t really necessary for the order, but it certainly helps the states.
This case is far from over, but this is a huge win for the states.
Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia.
Sophia A. Nelson: Court gets it wrong on presidential authority
I disagree with the 9th Circuit Court of Appeals ruling that “the government” doesn’t have the authority to enforce a travel ban. The court’s reasoning that the states would be “substantially injured” by the order, and that the government did not provide a clear, and urgent need for the order does not address the critical issue of whether the President has authority to issue such an order under the federal statute 8 U.S.C. sec. 1182 (f) and under his Article II powers in the Constitution. Section 1182(f) plainly and sweepingly authorizes the President to issue temporary bans on the entry of classes of aliens for national-security purposes.
That this is in question demonstrates why it is so important that the case be reviewed by the Supreme Court of the United States. Because it is a clear “separation of powers” issue, and there is nothing more fundamental and sacrosanct to our great republic than the ability of the three coequal branches of government to function independently and “in check” with each other.
The executive has a duty to protect the homeland from security threats that are deemed credible and perhaps imminent. We the people, (not the courts) need to stop dealing in our emotions and start dealing with the uncomfortable realities of the world in which we live. We need to step back from whether we like President Donald Trump, which seems to be driving so much sentiment in the media – particularly social media – and focus on his presidential authority, and that of every other president to follow.
We cannot afford to be naive anymore, to be so concerned about the rights of others outside our country that we jeopardize our own rights and security. We the people, deserve clear direction and guidance on the separation of powers and how our leaders may legally proceed in an age of terrorism and untested national security threats to America.
Sophia A. Nelson is an attorney admitted to practice before the D.C. U.S. Court of Appeals and the United States Supreme Court. She was a House GOP committee counsel from 1997-1999 and is the author of the new book, “E Pluribus One: Rediscovering Our Founders’ Vision for a United America.”
Danny Cevallos: Huge statement on separation of powers, but not the last word
In one fell swoop, the 9th Circuit shook the foundation of one of the strongest arguments of the federal government: that the President has, as the government claimed, “unreviewable authority to suspend the admission of any class of aliens.” The 9th Circuit disagrees. The 9th Circuit concedes they should generally defer to the other branches on matters of immigration and national security. But that doesn’t mean that courts lack the authority to review the constitutionality of executive actions.
It’s a huge statement on the separation of powers, and it’s not necessarily the last word on the matter.
The 9th Circuit’s opinion on this issue is not a final determination on the merits; this decision just keeps the temporary restraining order from the district court in place. The case should go back to the district court for an actual hearing, but before that happens, President Trump will probably appeal, if his “SEE YOU IN COURT” tweet Thursday night is any indication.
The important thing, though, is that in future cases, another court might interpret the executive’s power to be too broad for review, at least in this case.
Of course, one nonjudicial fix for the President would be to redraft the executive order itself, with plenty of briefing and judicial opinions from the last week as guidance. That would avoid the expenditure of judicial and government resources in the coming appeal. But that route would mean the President concedes defeat on some level. So we’ll see everyone in court.
Danny Cevallos is a CNN legal analyst and co-founder of the law firm Cevallos & Wong, LLP.
Ilya Shapiro: A judicial failure that compounds an executive one
This is a dog’s breakfast of a ruling on a dog’s lunch of an executive order. Somehow the 9th Circuit judges manage to write 29 pages without discussing the heart of the matter: whether the Immigration and Naturalization Act, specifically section 1182, gives the President the power to do what he did. Nebulous discussions of due process may be nice (or not) but they’re superfluous if the President went beyond his statutory authority. But apparently the court didn’t care about that.
And of course this whole mess could have been avoided if the executive order had gone through proper interagency review in the first place, as well as being more narrowly tailored. As it stands, it’s both over- and under-inclusive, sweeping in green card and other visa holders who have already gone through “extreme vetting,” as well as nonthreatening graduate students and sick kids, while not covering the potentially risky pool of nationals from noncovered countries (including European ones) who may have become radicalized.
In short, this is a judicial failure that compounds an executive one. Perhaps it’s time for the legislative branch (Congress) to step in and fix our broken immigration system once and for all.
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
Laura Coates: Court slaps down Trump
Does the President deserve deference in making decisions about our national security? Absolutely. Does the court have the right to hear a constitutional challenge to those decisions? Absolutely.
Issues of standing aside, this decision ultimately hinged on the answer to 9th Circuit Judge Michelle Friedland’s seemingly rhetorical question: Is a president’s decision unreviewable? This order resoundingly screamed “No.”
The 9th Circuit not only cited precedent where the courts have reviewed national security decisions even in times of peril – from reviewing the denial of passports to suspected communists to the egregious placement of Japanese Americans in internment camps to Guantanamo Bay – it also cited its obligation to check executive (and congressional) power under democracy itself.
But even though the farce of unreviewability closed one door to the administration’s path to success, the 9th Circuit opened a window. The judges beseeched the Department of Justice to justify judicial deference by explaining why the court should reinstate the travel ban rather than return to the status quo and rely on the vetting procedures already in place before the ban.
What is the national security interest you are vindicating, the court asked? But the only response you could hear from that window was a profoundly revealing silence. Without ultimately ruling on the merits, the court made clear that just as judicial deference is not automatic, neither is the bald assertion of national security a carte blanche. When the President cries wolf, the courts expect to hear a howl.
Laura Coates is a CNN legal analyst. She is a former assistant US attorney for the District of Columbia and trial attorney in the Civil Rights Division of the Department of Justice. Follow her @thelauracoates.
Kayleigh MeEnany: What Trump can do next
The 9th Circuit proved tonight why it is often the most reversed circuit each year. Despite President Trump having clear statutory and constitutional authority to put in place a temporary halt on immigration from countries that President Obama’s Department of Homeland Security found as having some affiliation with terrorism, the 9th Circuit upheld the temporary restraining order on two flawed bases: due process and the establishment clause.
As an initial matter, the Supreme Court clearly said 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.” Nevertheless, it is important to recognize that there are three categories of individuals: (1) noncitizens outside the United States; (2) noncitizens inside the United States.; and (3) Legal Permanent Residents (LPRs) and citizens.
While noncitizens outside the United States have no constitutional rights, noncitizens inside have a limited modicum of constitutional rights and LPRs and citizens have full constitutional rights. Because the President’s order affected categories (2) and (3) – despite clarification from the administration that it should not apply to LPRs – the 9th Circuit struck down the entirety of the order.
President Trump can implement the vast majority of his executive order if – as Alan Dershowitz suggested – he reissues it in a form that makes absolutely clear it does not apply to categories (2) and (3). This would avoid the unfriendly climate he will face at the Supreme Court with four liberal justices and would protect the national security interests of the United States.
Kayleigh McEnany is a CNN commentator and a graduate of Harvard Law School. She studied politics at Oxford University.