“[T]he powers of the president to protect our country are very substantial,” White House aide Stephen Miller assured the nation on February 12, “and will not be questioned.”
Miller has proved a singularly bad prophet. Donald Trump’s asserted powers—over immigration, over federal funding for “sanctuary cities,” and over the U.S. military—are receiving a very skeptical look from the federal judiciary. In the latest iteration of the “travel ban” case, the Ninth Circuit on Friday held that the third version of the ban violates the Immigration and Nationality Act. The Supreme Court had earlier signaled its unease with court-ordered injunctions against the ban; whether in response or not, the court of appeals has now offered the court a way to strike down the ban without imposing any real limit on federal power over immigration—while making clear that presidential power is not nearly as broad as Trump and Miller think it is.
Let’s quickly review the bidding: on January 27, Trump issued the first version of the “travel ban,” which barred entry into the United States of anyone from a set of predominantly Muslim countries; that version, which read as if it had been drafted by monkeys with Selectrics, was enjoined almost at once by federal courts on both coasts. The administration on March 6 replaced it with version 2.0, which, though more literate, was also immediately enjoined by judges in Hawaii and Maryland. Two courts of appeals upheld those injunctions; the Supreme Court agreed to hear the government’s appeal of those rulings, while narrowing the injunctions granted below. However, the government on September 24 issued the current ban—version 3.0; the Supreme Court dismissed the earlier appeals as moot. The same two courts enjoined 3.0. The government appealed those rulings to the Fourth and Ninth Circuits. During that appeal, the Supreme Court agreed to lift the injunctions altogether pending appeal.
Oral argument before the lower courts took place in the first week in December; the Fourth Circuit has not released its decision, but on Friday, the Ninth Circuit affirmed the trial court’s decision striking down the ban.
Let’s start with what the Ninth Circuit opinion isn’t—it is not a judgment that the administration’s latest order is a “Muslim ban.” It is not based on President’s Trump’s bigoted rhetoric, either as a candidate or after taking office. It does not find that the ban covertly discriminates by religion. It does not second-guess the executive’s factual decisions about national security. And it is not a challenge to the basic doctrine of immigration law—that Congress has “plenary power” to limit immigration on any basis it chooses.
In effect, the opinion turns the government’s claim of sweeping power back on itself. It assumes the government does have sweeping power to exclude aliens: “The Constitution gives Congress primary, if not exclusive, power to set immigration policy.” That may even include the power to discriminate by religion, nationality, or race. But even if that power exists, the president can’t just grab it by executive order. For that reason, courts must assess whether any presidential action conforms to “the [Immigration and Nationality Act]’s finely reticulated regulatory scheme.”
The government’s argument is that one section of the Act, § 1182(f), gives the president virtually unlimited authority to ban any group of immigrants:
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 … 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 court does not question the statute, but it denies that the Travel Bans conform to it: first, it argues, the president did not make any legally significant “finding” that the entry of travelers under 3.0 would be “detrimental” to U.S. interests; second, Trump did not “suspend” entry, but imposed an indefinite ban; third, Trump issued the ban to circumvent, not implement, the system of terrorist screening Congress had dictated; and, fourth, Congress in a separate statute has explicitly forbidden the executive to discriminate (in issuing immigrant visas at least) on the basis on nationality.
Here is the heart of the argument. The court reasons that Congress, elsewhere in § 1182, set out permitted ways for the executive to exclude possible terrorists and protect the U.S. when foreign countries don’t provide information the U.S. needs to screen applicants. The statute provides nine different specific security-related grounds for exclusion, including a provision barring an alien “who has engaged in a terrorist activity.” The statute also has sections governing countries that don’t share information needed to assess visa applications. These provisions are the choices Congress made in this area. It would make little sense, the opinion suggests, to read 1182(f) as wiping them out by giving the president the power to suspend entry of any immigrants anywhere anytime because—well— because terrorism is bad or information is good.
[T]he President cannot effectively abrogate existing immigration law while purporting to merely strengthen it; the cure cannot be worse than the disease. Here, the President has … overridden Congress’s legislative responses to the same concerns the Proclamation aims to address. The Executive cannot without assent of Congress supplant its statutory scheme with one stroke of a presidential pen.
In other words, Congress has the power to rewrite the law; Donald Trump does not. That is the basic rule called “separation of powers.” The opinion cites an earlier Supreme Court opinion—by potential swing vote Anthony Kennedy—that the separation must be observed “even when the executive actions respond to … issues that potentially place the country’s ‘Constitution and its survival in peril’” because “’[c]oncentration of power in the hands of a single branch is a threat to liberty.’”
Finally, the court asks whether there some “inherent” presidential power in the immigration area, or in national security generally, that would permit Trump to act without any statutory power at all. “We conclude that the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress,” it says.
The opinion thus offers the Supreme Court a chance to reject 3.0 without limiting government power over immigration—indeed, without even limiting the president’s power to act in a genuine emergency: “we again need not, and do not, decide whether the President may be able to suspend entry pursuant to his constitutional authority under any circumstances (such as in times of war or national emergency), as the Proclamation was issued under no such exceptional circumstances.”
The opinion offers the Supreme Court An off-ramp from the road to a major constitutional ruling; whether the justices will take it is a different question. Appeals courts regularly tee up appetizing-seeming rationales, and the Supreme Court regularly ignores them. In addition, some of the lower court’s statutory arguments are a bit facile, particularly its rejection of 3.0’s “findings” as inadequate. But the opinion does not question federal power to exclude aliens, and indeed reaffirms it. It pointedly observes that, like its predecessors, Travel Ban 3.0 “cites to no exigencies, national or otherwise, and does not respond to a situation Congress would be ill-equipped to address.”
In other words, a travel ban is perfectly possible, and the administration is always free to ask Congress for one. Had it done so in January, Congress might have enacted one by now. The Supreme Court may be concerned that a decision against the government in this case may weaken the nation; the Ninth Circuit opinion suggests a way to avoid doing so—while still rejecting Trump’s demand for personal powers that “will not be questioned.”