No one should be surprised that a 9th U.S. Circuit Court of Appeals panel, made up of three judges appointed by President Bill
Clinton, upheld the injunction on Monday against President Donald Trump’s revised executive order temporarily halting entry from six terrorist safe haven nations.
The 9th Circuit panel was simply following the lead of the 4th Circuit Court of Appeals, which also recently ignored binding U.S. Supreme Court precedent that gives the president the authority to do exactly what he did.
This was another political decision—not a legal decision—by judges who seem to believe that they have the right to substitute their judgment on national security issues for that of the president.
Despite this latest pronouncement of the 9th Circuit, the president’s actions are lawful and fully within the constitutional authority delegated to him by Congress.
As five dissenting judges of the 9th Circuit pointed out in a previous decision on the executive order, the judges who are ruling against the president are confounding “Supreme Court and 9th Circuit precedent,” which makes clear that “when we are reviewing decisions about who may be admitted into the United States, [the courts] must defer to the judgment of the political branches.”
The judges who issued Monday’s decision are not deferring as they are required to do, and neither did the judges in the 4th Circuit decision. The only branch of the government that is acting outside its constitutional authority is the judicial branch, not the executive branch.
Hopefully, all of that will soon change.
Supreme Court Looks to Weigh In
On June 1, the U.S. Justice Department filed a petition for certiorari with the Supreme Court asking the court to review and overturn the 4th Circuit’s decision.
Normally, a party responding to a petition for certiorari has 30 days to file its brief.
But in a sign of how seriously the Supreme Court takes this litigation battle over the president’s authority on national security matters, the court on June 2 ordered the challengers in the case to file their response to the government’s petition by June 12.
The challengers met that deadline on Monday, filing a brief that opposes the government’s arguments that the Supreme Court should accept the case for review.
Additionally, 16 states and the District of Columbia, led by New York Attorney General Eric Schneiderman, filed an amicus brief urging the Supreme Court not to take up the appeal of the case and to let the lower court decisions and the injunctions stand.
One of the reasons given is that there is no conflict between the lower court holdings.
Of course, while a conflict between the courts of appeal is often a reason for the Supreme Court to take up an appeal, that is not the only reason for the court to grant certiorari.
If the lower courts are uniformly getting it wrong and failing to follow the Supreme Court’s binding precedents on an issue, that is a more than sufficient reason to take up a case.
In fact, the court has an obligation to do so in order to prevent chaos in the legal system resulting from lower courts refusing to follow the law.
That is especially true when the judicial branch is interfering with the president’s prerogatives in the national security and immigration area.
Given the vital importance of this litigation, it seems almost certain that the Supreme Court will grant the Justice Department’s petition and accept this case for review.
As the Justice Department said in the petition, the 4th Circuit’s claim that the national security basis for the president’s action “was provided in bad faith, as a pretext for” religious discrimination, “is wrong and in manifest need of this court’s review.”
Fast-Tracking This Case
But as those familiar with the Supreme Court’s procedures know, its term normally winds up at the end of June when the court issues its final decisions and the justices take their summer break. The court will not start its new term until October of this year.
So what will happen with the so-called “travel ban” case if the court takes the case? Will we have to wait until October to hear oral arguments? Will it be late in the fall before we get a decision?
While that is a possibility, it seems unlikely. The court already shortened the response date for the challengers.
In previous important cases filed toward the end of the court’s term, the court has acted very quickly to schedule oral arguments and to then issue a decision shortly thereafter.
For example, in the famous case about the publication of the Pentagon Papers, New York Times v. U.S., the 2nd Circuit Court of Appeals issued its decision on June 23, 1971. Only two days later on June 25, the Supreme Court granted certiorari.
The case was argued before the court on June 26, and the court issued its decision on June 30, 1971—only one week after the Court of Appeals’ decision.
In 1981, the Supreme Court heard a case stemming from the seizure of American personnel as hostages at the U.S. Embassy in Tehran, Dames & Moore v. Regan, and the seizure of Iranian property and assets by the U.S. government.
That case was argued on June 24, 1981, and a decision was issued on July 2, 1981, when the court would usually have already been in recess.
And in a very famous case involving aliens—the German saboteurs caught in 1942 as they were landed by German submarines—the Supreme Court heard the arguments in their habeas corpus case on July 29 and 30, 1942, in a “special term” called by the court.
The Supreme Court issued its decision in Ex Parte Quirin the very next day—July 31, 1942. The stakes in that case were dire. The lives of the saboteurs who had been caught, tried, convicted, and sentenced to death were at issue.
Full Steam Ahead
The Supreme Court should take this case, hear arguments as quickly as possible (before the end of June), and issue a decision before the justices leave for the summer.
As the government says, there is no doubt that this executive order “has been the subject of passionate political debate.”
But whatever one’s views, “the precedent set by this case for the judiciary’s proper role in reviewing the president’s national security and immigration authority will transcend this debate, this order, and this constitutional moment.”