NEW YORK – The decision by the U.S. Court of Appeals for the 9th Circuit upholding a nationwide freeze on Donald Trump’s immigration executive order is a powerful rebuff to the administration — and to the president personally.
The court went out of its way in its opinion released Thursday to emphasize the right and the duty of the judiciary to rule on the constitutionality of executive action, even when national security is on the line. The unanimous panel was unwilling to bow to the personal pressure that Trump aimed at it. And, tellingly, the most important recent precedents the court cited were written by Justice Anthony Kennedy, whose vote will be crucial if and when the case goes to the U.S. Supreme Court.
The most noteworthy parts of the decision came in response to the government’s argument that the president has “unreviewable authority to suspend the admission of any class of aliens.” The court rejected this claim outright as not only wrong but also unprecedented. “There is no precedent to support this claimed unreviewability,” the court wrote. Moreover, the court said the government’s claim “runs contrary to the fundamental structure of our constitutional democracy.”
In support of the all-important conclusion that the Trump administration’s argument violates the fundamental structures of the Constitution, the court cited Boumediene v. Bush, a 2008 Kennedy decision that represents the pinnacle of the argument that the judiciary has the final word on the constitutionality of government action.
In the Boumediene case, Kennedy rejected the idea that Congress and the president acting together could place the military prison at Guantanamo Bay, Cuba, outside the reach of the constitutional guarantee of habeas corpus.
The most famous line of that decision, which the panel cited, said, “To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.’ ”
That is as strong a statement of judicial supremacy as the Supreme Court has ever made. In relying on it, the 9th Circuit judges were channeling Kennedy — and sending him the message that they expect him to have their back.
For good measure, the panel threw in a historic, post-Civil War case, Ex Parte Milligan, in which the Supreme Court said, “The Constitution of the United States is a law for rulers and people, equally in war and in peace … under all circumstances.” This citation was a pointed and clever response to the Trump administration’s claim that national security provided a further reason for deference.
Subtly, the court was pointing out that the U.S. is not at war with any of the seven majority-Muslim countries covered by the executive order. And, as the court also noted, there have been no instances of terrorism in the U.S. by any citizen of those countries.
When it came to the technical question of whether the states of Washington and Minnesota have standing to sue, the court provided more of an explanation than the federal district judge in Seattle had time to do in his brief opinion that put Trump’s order on hold. The court essentially accepted the states’ argument that their state universities would be negatively affected by students, faculty and speakers who could not enter the U.S. under the executive order or leave the U.S. for fear of not been able to return. The court provided plenty of citations from two cases holding that universities can bring cases that reflect the interests of their students. This argument is more than enough for a sympathetic Supreme Court to uphold — and the odds are that the liberal justices plus Kennedy will be eager to stand up to Trump.
The other major hurdle for the plaintiffs was showing that noncitizens are covered by the Constitution. Here the court adopted an interesting strategy. It emphasized the due process rights of lawful permanent residents to notification and a hearing before they are excluded from the U.S. The rights of these so-called green-card holders are certainly stronger than the rights of people in the U.S. on student visas.
What is striking about this approach is that the Trump administration now says the executive order doesn’t apply to green-card holders. The court flatly dismissed that clarification, among others made by the White House counsel, as irrelevant. It said, “The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” The White House counsel also lacks the authority to issue an amended executive order, the court pointed out. And who knows, the court said, if the Trump administration might not change its mind again.
This was a devastating reply to the administration’s initial assertion that the order did in fact cover lawful permanent residents.
For the Trump administration to get around this problem, the president himself would probably have to sign a new order excluding green-card holders. That would put Trump in the position of admitting a mistake, not something he seems inclined to do.
The case has further to go. The appeals court did not delve into the question of whether the executive order discriminates against Muslims; that question will go back to the district court in Seattle. But it did correctly note that under relevant Supreme Court precedent(also by Kennedy), evidence of discrimination may come from outside the text of the government enactments itself — such as Trump’s interviews and tweets.
But the message to the Trump administration is extremely clear. Its order to curb immigration from seven majority-Muslim countries is suspended, and will mostly likely remain so for the foreseeable future unless five Supreme Court justices want to undercut the principle of judicial supremacy. Challenging the courts and attacking individual judges is a self-destructive strategy for Trump. Now he will have to reap the consequences.
Noah Feldman is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.