In his piece, “The Ninth Circuit’s Astounding Reasoning,” Garrett Snedeker discusses the complicated state of affairs as the Ninth Circuit has challenged the authority of President Trump’s executive order to temporarily restrict entry of immigrants from certain high-risk countries. Mr. Snedeker analyzes this controversy in light of two different SCOTUS opinions written by Justice George Sutherland in the 1930s. Some excerpts:
“In its February 9 opinion in Washington v. Trump, a three-judge panel of the Ninth Circuit Court of Appeals ruled against the administration’s request to stay a lower court’s ruling halting the restriction order. To be sure, the administration created an unusually chaotic environment around the implementation of its policy, for which it deserves blame. Including permanent residents in the executive order gave an opening for enterprising lawyers to challenge it on contestable grounds (to at least one district court judge) of state standing, and for television cameras to find sympathetic individuals caught at airports or otherwise unable to enter the country.”
“Noticeably, the Ninth Circuit panel never challenged the administration’s ability to deny entry based on its reading of the statute. And the administration would be quite coherent in arguing, even apart from the statute, that the principles of natural right that underlie the existence of a national executive—principles such as government by consent—necessarily require a figure responsible to a national electorate to manage its external relations to vindicate those principles. Function once again follows form. “
“Just as the laws of New York could never supply the grounds for sorting out a claim to assets from a foreign entity, the states of Washington and Minnesota cannot coherently claim an injury from the Trump executive order. As Alexander Hamilton in Federalist 80 reasons, “the peace of the WHOLE ought not to be left at the disposal of a PART.” The priorities of the Governors of Washington and Minnesota who support their attorneys general filing suit are not relevant to the national electorate.”
“In other words, the Ninth Circuit panel recast executive responsibility from maintaining the safety of citizens to maintaining the due process “rights” of non-citizens. The appeals court judges have assumed unto themselves the role of prime arbiter of the measures justifiable in protecting the people from external threats, a role unfitting for officeholders who are, by virtue of their life tenure, unaccountable to the national electorate.”
Read the whole piece here.