The Ninth Circuit declined to reinstate President Trump's immigration ban yesterday, finding that the government had shown neither "a likelihood of success on the merits," nor any evidence that a failure to resume the program "would cause irreparable injury."
The decision is bound to be picked over by lawyers, politicians, and possibly the Supreme Court. But along with the court's words, there is plenty of insight to be gained from the court's citations, which give us a sort of peek, one-level down, at how the court viewed the immigration dispute and its role in it.
A Nod to Internment in Discussion of Unreviewability
Commentators have noted that the DOJ's suggestion that the president's executive order was unreviewable harkened back to George W. Bush administration circa 2007. But the Ninth strongly rejected claims of unreviewability, calling it "contrary to the fundamental structure of our constitutional democracy." The citation? Boumediene v. Bush, the 2008 Supreme Court case that checked the Bush administration's expansive view of the executive branch, declaring that the "political branches" lack "the power to switch the Constitution on or off at will."
These are citations not, of course, chosen at random. They are precedent. But these citations and references also add another layer of meaning to the court's opinion -- a kind of "subtweeting" to use an appropriate term for the Trump era.
A citation to Pierce v. Society of Sisters, during a discussion of Washington State's schools and standing is almost inevitable. (That case acknowledged a school's ability to challenge Oregon's KKK-backed Compulsory Education Act.) A cite to the Ninth's Parks School of Business v. Symington, involving a school's claim of racial discrimination by the federal government, is less so.
In that same discussion of reviewability, for example, the court cited Ex parte Milligan, the 1866 decision limiting military tribunals. "The Constitution of the United States is a law for rulers and people, equally in war and in peace... under all circumstances," the court quoted.Then came internment. The Ninth included a citation to Ex parte Endo, the 1944 decision that led to the end of Japanese interment. During the election campaign, calls for a Muslim ban and even a Muslim registry reminded many of the government's internment program during World War II. Was the inclusion of Endo a subtle rebuke of the vilification of others because of their ethnicity or ancestry?
The Parties May Change, But the Checks and Balances Remain
The closest the opinion gets to "throwing shade," as the kids say, comes when the court discusses limiting the geographic scope of the TRO. It declined to do so, citing the Fifth Circuit's 2015 ruling upholding a nationwide injunction against President Obama's immigration reform program, on the grounds that a "fragmented immigration policy" goes against the requirement of uniform immigration laws.
Through that injunction and ruling, which was affirmed by a deadlocked Supreme Court, Texas effectively stopped one of the president's signature initiatives.
There has been plenty of talk of California taking over Texas's role as the chief legal antagonist to the president's agenda, and the more liberal Ninth Circuit replacing the conservative Fifth as a thorn in the administration's side. While Washington may have beaten out California here, the Ninth's reference to the Fifth's Texas v. United States decision is a clear illustration of this shift.
Further, the citation is significant because the Ninth doesn't actually embrace the Fifth's conclusion. "At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves," the Ninth said.
What Wasn't Cited
Finally, as the president pointed out on Twitter this morning, the opinion was also notable for what was left out.
LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!-- Donald J. Trump (@realDonaldTrump) February 10, 2017
This raises a couple of questions. First, Donald Trump reads Lawfare? The relatively niche national security law blog? Who knew.
(Perhaps more likely, someone else with the president's ear checked out the blog. Trump's tweet came just minutes after the Lawfare post was discussed on MSNBC's "Morning Joe," according to Politico.)
Second, what statute? That would be section 212(f) of the Immigration and Nationality Act, which the president has argued gives him the right to suspend the entry of aliens whenever their entry is found to be "detrimental to the interests of the United States." Lawfare calls the lack of citation to that statute "a pretty big omission."
Washington, for its part, argues that that statutory authority is limited by the Constitution, as well as the INA itself, by an amendment to the law 13 years after section 212(f) was adopted. That section forbids discrimination on the base of race, nationality, place of birth, or place of residence in the issuing of immigration visas. Washington, too, had urged the court to address its statutory claims.
So why did the Ninth skip it? We'll assume it's for the same reason that it did not address the equal protection and Establishment Clause arguments -- because it found that it could decide the case on due process grounds alone. The court declined to touch on those additional issues, it wrote, given the "sensitive interests involved" and the "pace of the current emergency proceedings."
- What's Happened and What's Ahead in Washington v. Trump (FindLaw's U.S. Ninth Circuit Blog)
- Washington v. Trump: DOJ Reply Comes in, Oral Arguments Scheduled for Today (FindLaw's U.S. Ninth Circuit Blog)
- Legal Battle Over Trump's Immigration Ban Could Play Out in the 9th Cir. (FindLaw's U.S. Ninth Circuit Blog)