Sunday, February 05, 2017

The State of Washington Should Cite The Pentagon Papers Case to the Ninth Circuit

by Michael Dorf

Today the federal government filed a notice of appeal to the Ninth Circuit of the order by Judge Robart enjoining key provisions of the president's Executive Order limiting entry of various persons into the country. It then filed its motion for an emergency stay. There are a great many procedural issues, including whether the order is subject to an interlocutory appeal. The government says it is, citing authority that says that although a temporary restraining order is not ordinarily subject to such an appeal, it is where it has the characteristics of a preliminary injunction. I may return to one or more of the procedural issues in the coming days, but for now I want to make one very simple point.

Although Judge Robart's order does not specify which of the grounds offered by the states of Washington and Minnesota for relief are sufficient to establish a likelihood of success on the merits, during the oral argument the judge appeared to be most enamored with the fact that there does not even appear to be a rational basis for the executive order. It cites 9/11 as a security threat, but as Judge Robart stated during the oral argument, there appear to have been no terrorist attacks in the United States carried out by nationals of the seven countries to which the 90-day suspension applies (and as Washington's brief notes, the suspension does not apply to any of the countries from which the 9/11 hijackers themselves came).

In its emergency stay motion, the federal government argues, as it did in its district court brief and during the district court oral argument, that the assertion of a facially valid national security reason for executive action is simply not reviewable for rationality by courts. When pressed at oral argument, attorney Michelle Bennett, arguing for the federal government, was reluctant to answer Judge Robart's question whether she was really claiming that there was no rationality review at all, but that appears to be the federal government's position: If the president says national security and offers a facially valid reason, courts can't look behind it.

Yet as Washington Solicitor General Noah Purcell noted, that's not even categorically true in the immigration context. For example, in Kerry v. Din, Justice Kennedy, joined by Justice Alito, wrote a pivotal concurrence indicating that a showing of bad faith could validate a due process claim with respect to a particular factual determination. The equivalent--a showing of irrationality--ought to be able to validate a claim challenging the categorical judgment in an executive order.

But in any event, the federal government does not appear to be making a point about immigration alone. Rather, the federal government is pretty clearly saying that courts don't get to second-guess the executive at all where national security is the asserted basis for the action. And that's simply not true. During the oral argument Purcell cited the Gitmo detention cases, which are certainly relevant. There's another relevant precedent: The Pentagon Papers Case. The case produced a variety of opinions, but I have long regarded the common ground among all the justices who signed onto the majority to be this: If there is any threshold the government can satisfy for a prior restraint on the press, it cannot be satisfied by the mere talismanic invocation of "national security." Some particularized showing must be made.

Pentagon Papers was a First Amendment case, but: 1) so is the Washington/Minnesota challenge to the executive order, at least in part (relying on the Establishment Clause rather than the Free Press Clause); and 2) Pentagon Papers establishes a broader principle that necessarily suffuses U.S. constitutional law: Although courts give considerable deference to the political branches with respect to foreign affairs (including immigration) and national security, the mere claim that some law or policy serves national security interests cannot be enough to satisfy judicial review, for if it were, the government would invoke it in every case, no matter how irrational.

One need not dream up hypotheticals. Until yesterday, pursuant to the Trump order the federal government had been excluding infants and children who need surgery on grounds of national security. If the courts must accept that national security justifies the Trump executive order, we may as well say that there is no more judicial review, because the government will invoke national security in every constitutional case.


Mike Schramm said...

Thank you. I am an average, non-attorney citizen and this makes sense.

David Ricardo said...

Holy Crap as Frank Barrone would say. This is some serious stuff.

The argument made by the administration, this (from the AP, no it is not fake news)


and this

Congress "vests complete discretion in the President" to impose conditions on alien entry, so Trump isn't legally required to justify such decisions, it says. His executive order said the ban is necessary for "protecting against terrorism," and that "is sufficient to end the matter."

ought to scare the hell out of everyone. It sure does for me. A couple of weeks into Presidency Trump says his word is supreme, there is no rule of law, no court review, just what he says, goes. And if it is that way on immigrationm well isn't it that way on everything?

el roam said...

Thanks for the post, surely there is no point, to claim that there couldn’t be, any judicial review, concerning national security matters, for this is in fact, the inherent duty of the courts. Yet, it is limited to unreasonable and vague and dubious actions. One can cite, the district court, in one case (detainees in Gitmo) at the district court for the district of Columbia (Mukhtar V. Barack Obama ) here :

" Courts are traditionally " reluctant to intrude upon the authority of the executive in military and national security affairs ..... "

But ( mine ) :

" on the other hand , the Hamdi plurality recognized that such deference must have limits , and noted that :” as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”

End of quotation :

So , it is not a matter of principle , but , matter of a case , specific case . For that purpose , judges need simply to prevail , while being based on adversative expert opinions , assessing the situation , and whether the measures proposed , are really efficient and proportional .

One should not forget , The argument that :


Is no doubt not that much relevant . This is because , what counts , is not only completed terrorist actions carried out , but , also , conspiracies and plots , let alone intercepted by the security forces in the past ( from those listed countries ) . Just sober reminder: The Drones of Obama, traveled all over those countries mentioned, executing summarily , not one or two terrorists (reaching pick of all time) while plotting and conspiring against the US. Is it more draconian or less than tightening immigration policy ? I doubt it !!

Links :

List of drone strikes in Yemen

Verdict of district court mentioned :


egarber said...

Is there anything to the notion that the Washington TRO is in a state of conflict with the Boston decision to let the TRO expire? As I understand it, the Washington ruling is uniquely binding, given that the plaintiffs are states making aggregate impact claims - hence a clean path to cite the need for uniformity across the nation.

Joe said...

It is a sort of hang them by their petards thing that one of the judges (need a spreadsheet to keep track of all this stuff like in the SSM and health care litigation) cited Texas v. U.S. to support a national injunction. That is the order by a conservative judge blocking President Obama's immigration policy. I thought it ill advised for a single judge to have so much power myself. And, then the Supreme Court deadlocked 4-4 on the case and the matter was not decided.

"Justice Kennedy, joined by Justice Alito"

Justice Alito might on some level seem a thin reed to rest on when restraining federal power here, but then even he has limits.

Joe said...

For those who want to look into the weeds, see, e.g.:

Michael Barnett said...

Professor Dorf -- I am wondering what your take is on whether a district judge can issue a nationwide injunction. I may be misremembering but I thought I learned (from you) that outside the class action context, a district judge cannot issue a nationwide injunction. Thank you.

Joseph Simmons said...

In line with the blog posted by Joe, I'd really like to know how the states have standing. Dwelling on whether there is a "rational basis" (those are intentional scare quotes) puts the horse before the cart. First explain why the government needs to justify its decision to the parties bringing suit THEN get into whether that justification is good enough.

jb said...

So let me see, there are countries, and people from those countries, that burn our flag, vow the destruction of our way of life and we need to welcome them into our USA? Kinda reminds me of many years ago, we felt safe as frogs in warm water when 3000 innocent people were murdered on 9/11. We need a better NIS system in place regardless of the legal rhetoric. and where existing laws are in place - they need to be enforced.

Joe said...

I provided that link but the discussion seems incomplete.

It notes (as someone who reads the short order via the link Prof. Dorf supplies can see) that part of the standing is based on:

"The court also finds harm to the state itself, through its public universities, tax bases, operations, and public funds."

Justice Breyer (I listed to the oral argument via this afternoon) reminded the state in Texas v. U.S. that "parens patrie" standing is barred by precedent, but the advocate responded it wasn't basing it on that.

And, the Supreme Court deadlocked, so apparently four justices at least found standing there for some reason. And, here why does the professor there find the second reason [see page 5 of the order] not enough?

Jim Henderson said...

"The Court has jurisdiction" but doesn't bother to cite a statutory grant thereof.

The States claimed standing in parens patriae but don't bother to cite a statutory grant by Congress. Good example, among others, is the FACE Act, in which Congress expressly authorized suit by State AGs.

College Writing Help said...

Ok this makes sense. Thank God that state of Washington has come up with this now.

el roam said...

Just clarification to my comment above :

I wrote " the inherent duty of the courts " without further explaining the source of it :

Whatever legislated or not , doesn't matter . For , judicial review is the essence of the principle of " rule of law " . No one , no official , no authority , any president , are above the law . That means :

That every act must be in conformity with law ( notwithstanding its content ) . The courts as such , are the authority , inspecting and verifying that every act ( if motion filled of course ) is in conformity with the law and the constitution . This must include national security matters . Otherwise , something , someone , shall be above the law , and shall act capriciously . Acting capriciously , characterizes dictatorships , not democracies .

Well phrased by Bernard Schwartz and H.W.R. Wade, Legal Control of Government , Oxford ( 1972 ) 281 ) here :

" There is no need to discuss whether judicial review is available at common law . It is always available , for that is what is meant by the rule of law ….."

And one scroll , can't have it all here ….


Joseph Simmons said...

As for the comparison with the Pentagon Papers, that is a thin reed. Prof Dorf observes that while that case involved the Free Press Clause, here the states claim (but the court doesn't mention) the Establishment Clause. The policy as written favors minority religions but statements were made particularly concerning Christian refugees. So that is the whole of the argument. I don't see that getting to an Establishment violation without much much more. At the very least there is not ripeness.

I agree with Prof Dorf that claiming national security precludes judicial review. But I don't see that being the argument here. Where the court relies merely on claimed harm I don't see how a "facially valid national security reason for executive action" done under constitutional authority (here, regulation of immigration) fails "rational basis." If there were more, like a likelihood of success on a claimed violation of the Establishment Clause or the Take Care Clause then I think we maybe we get there. I didn't buy the arguments against Obama's immigration EO that mere harm to states was good enough to defeat his policy. The question of justiciability (on the Take Care Clause) loomed large there.

Joe said...

"The policy as written favors minority religions but statements were made particularly concerning Christian refugees."

If one religion is "favored," I'm confused about the problem with finding an Establishment Clause problem. This arose with state "Sharia law" bans too. Not sure also why it isn't "ripe" when the provisions are there and being applied.

The difference for me there would be that free speech and establishment issues aren't really applied the same -- prior restraints are generally banned absolutely except in very narrow ways. The Establishment Clause is somewhat less clear-cut. But, that's a matter of degree that is of limited concern in the current context.

I would need to see more detail than provided in the brief order linked here (the seven page one I cited) to know if the executive passed review. One judge thought so. But, to take but an example, there is an establishment limit even if favoring a religion might in some fashion be "rational." And, others have spelled out that the ban was not evenly drawn for "national security reasons," but singled out certain religions and countries (some evidence there that countries Trump did business with was involved, which in itself raise the Emoluments Clause).

Joe said...

This link also might be useful:

Joseph Simmons said...

Joe, if one were religion were favored there could be an arguable violation. The policy as written does not favor one religion. It favors minority religions, of which there are any number. There are good reasons for speaking directly of Christian refugees who may constitute the largest minority in some of those countries, but without more I do not see how the issue is ripe for review.

You get closer in speaking of prior restraints (and how that is even problematic here) but the policy itself does not set up the kind of Establishment Clause violation that is now only speculative.

I clearly agree the short order is sorely lacking. It is established (ie: it is what the EO says) that the countries affected by Trump's EO are those previously identified in a law signed by Obama as nations of concern for terrorist activity. Whether that law's identification of problematic nations is accurate and whether those nations merit an immigration pause are certainly debatable issues. Rhetoric can inform how we interpret a law, but the text of the law comes first.

Shag from Brookline said...

Rearding Joseph's:

"Rhetoric can inform how we interpret a law, but the text of the law comes first."

if the text isn't clear, what comes next in interpretation? Might the "rhetoric" of Trump and his advisors play a part in the review of a court on how to interpret the text?

Joseph Simmons said...

Shag, so far as I know there is no question of ambiguity raised. I don't think rhetoric can necessarily fill in the gaps of a supposedly ambiguous law but as I said it can inform its interpretation, including whether it is truly ambiguous. We certainly saw a lot of that in the ACA cases in the form of "everybody understood it to mean X." As you know many different principles come to bear on questions of ambiguity.

Shag from Brookline said...

Joseph, as I understand it the federal agencies tasked with following the EO were not in sync on what the EO called for, suggesting perhaps a tad of ambiguity. Also, if the EO policy favors minority religions, i.e., Christian and others, in those countries, then can it be concluded that the policy is aimed at the majority Muslim religion in those countries? Then there was confusion in the application of the EO to those with green cards. Might confusions of federal agencies in implementing the EO suggest ambiguity? Perhaps interpreting/construing an EO, because of how EOs are processed/issued differs from statutes and the Constitution. Of course, we could place blame on such federal agencies.

David Ricardo said...

If you want to argue the legality of the EO, read the brief submitted by the states of Washington and Minnesota

and then tell us where it is wrong.

Shag from Brookline said...

I just read John Yoo's Op-Ed in the NYTimes in which he took issue with much of the executive power exercised by Trump in the last two weeks. This may lead to a tweet from Trump varying a song title of my youth: "There will never be another Yoo." But Trump does agree and ready to go beyond.with Yoo on enhanced interrogation.

Pegita said...

The Trump Administration argument is basically that the president cannot be questioned on national security matters or perhaps to even make it narrower, immigration matters as he has absolute power in that area -- at least as far as the judiciary goes, even if he might grant Congress some power to legislate. The problem with this argument is it destroys any concept of three branches of government. It leaves it to the whim of a president to do anything, more like a monarch. While the judiciary's role in international matters is narrow, rationality would appear to be a basic test. What if the president declared no black people may henceforth enter the United States from anywhere because he felt they could easily hide among African Americans in America or that we need to "return" to a White based nation. So, like the current ban, a black child of 3 couldn't enter the country for medical care on a temporary visa? This is crazy. But under the Trump argument, our judiciary would be banned from questioning irrationality. It is hard to imagine that our courts are going to abdicate even a very limited role and turn our constitution into a one or two branch government.