ot since the epic battle between the 9th Circuit and the U.S. Supreme Court over the execution of Robert Alton Harris a quarter century ago has the 9th Circuit ventured so far out on a lawless limb as it has with its recent spate of rulings blocking President Donald J. Trump’s executive orders curtailing immigration from several terrorist-infested countries around the world.
Then, the late Judge Harry Pregerson kept issuing last-minute stays of execution, with the Supreme Court just as fast overturning them, until finally after four rounds of insubordination the Supreme Court took the unheard-of step of barring the 9th Circuit from further jurisdiction over the matter.
Now, the 9th Circuit appears eager to take a run at Judge Pregerson’s four-times-overturned-on-the-same-issue record. Last February, it upheld an extraordinary, nationwide injunction from a federal district court judge in Seattle, which blocked the president’s first executive order temporarily suspending the admission of aliens from certain countries with ties to terrorism. And it did so without bothering to mention the act of Congress that quite unambiguously gave the president the authority to do exactly what he did. That statute, Section 1182(f) of Title 8, provides: “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 by proclamation, and 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 restriction he may deem to be appropriate.”
Although that decision warranted a quick appeal to, and reversal from, the Supreme Court, the president decided to issue a second executive order instead, modified to address the rather specious holdings made by the 9th Circuit and the district court below. Not surprisingly, that effort was also unavailing, as a district judge in Hawaii — also in the 9th Circuit — blocked its enforcement the day before it was to take effect last March. The 9th Circuit upheld the district court’s injunction early last June, but the Supreme Court rebuffed the lower courts on June 26, the last day of its term, lifting the injunctions (and allowing the executive order to go into effect) for all but a narrow subclass of immigrants who had “any bona fide relationship with a person or entity in the United States,” including a “close family relationship” such as “a spouse, child, or parent.” The high court then scheduled a full hearing on the merits of the case for last October. Supreme Court 1, 9th Circuit 0.
Apparently recognizing that the courts in the 9th Circuit were favorable to its position despite the Supreme Court’s June 26 order, the state of Hawaii urged the district court to read the “bona fide relationship” language so broadly as to render it meaningless. All refugees seeking entry into the United States qualified, according to Hawaii, because once here, they would be aided by a resettlement agency, which provided the necessary “bona fide relationship.” And Hawaii urged the district court to read “close family relationship” to include not just spouses, parents and children, but grandparents, aunts, uncles, cousins, siblings-in-law, etc. — in other word, the whole family tree. Although the district court initially denied Hawaii’s request, it altered its injunction to reflect Hawaii’s expansive definitions after the 9th Circuit instructed it to do so, rendering the Supreme Court’s June 26 order upholding President Trump’s immigration order largely meaningless. The U.S. Department of Justice again sought intervention from the Supreme Court, which stayed the district court’s order modifying the injunction in the broad language pushed by Hawaii. Supreme Court 2, 9th Circuit still 0.
President Trump’s first and second executive orders were explicitly temporary, so after they ceased to have effect of their own accord last September when the president issued a permanent order based on information gained during the intense assessment of our vetting policies and capabilities during the time the temporary orders were in effect, the Supreme Court dismissed the case as moot.
Not to be deterred, Hawaii challenged the new order as well — in the district court in Hawaii, of course, within the 9th Circuit’s jurisdiction. After expedited briefing and without argument, the district court granted a worldwide temporary restraining order, later converted to a preliminary injunction. The 9th Circuit denied the president’s request for a stay of that injunction except as to “foreign nationals who [do not] have a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court then stayed the injunction. Supreme Court 3, 9th Circuit still 0.
The 9th Circuit then proceeded to consider the merits of the district court’s injunction, and — surprise, surprise — upheld the injunction. The clear language of Section 1152(f) couldn’t mean what it said, the court held, because, well, it just couldn’t. And the 43 times that prior presidents had relied on the statute to deny admission to classes of aliens? Well, those were different, because they weren’t as broad (except some of them) or as indefinite (except some of them). The Supreme Court granted the government’s petition for writ of certiorari on Jan. 19, and has scheduled oral argument for April 25, the last scheduled argument day of the term.
It is hard to read Section 1182(f) as anything other than unambiguously authorizing the president’s executive order. That, combined with the not insubstantial authority over the entry of aliens that the president has directly from the Constitution itself, should make this an easy case. As the Supreme Court has repeatedly recognized, the decision whether or not to admit aliens or any class of aliens is an inherent aspect of sovereignty vested by our Constitution in the legislative and executive branches of our government that is “largely immune from judicial control.” Expect, therefore, the final tally to be Supreme Court 4, 9th Circuit still 0. The only real question is whether the Supreme Court will merely reverse, or will include stark language in its opinion reminding the 9th Circuit that it is, after all, an “inferior” court (to use the Constitution’s own term), bound by the Constitution, the law, and Supreme Court precedent, even with respect to executive orders that it does not like, issued by a president whom it apparently still cannot believe is president.
Dr. Eastman is the Henry Salvatori Professor of Law & Community Service, and former Dean, at Chapman University’s Fowler School of Law. He is also the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, on whose behalf he has filed an amicus curiae brief in the Trump v. Hawaii case.
This piece was first published published by Los Angeles and Daily Journals on March 6, 2018.