Jane Chong adds to Benjamin Wittes’ opinion on the Muslim Ban Executive Order, centering around the failure to mention what appears to be a critical statute:
… it was strange to leave out the citation, given it is the crux of the government’s argument for the president’s unbridled discretion to bar aliens from the country. But after reviewing the opinion and the parties’ filings, I don’t think the court’s omission of the citation was accidental or that its omission of a § 1182(f) discussion is surprising. This is a clever, if somewhat undisciplined, opinion that sought to get to its holding (denial of the stay) without tripping legal landmines or weighing in on big unresolved questions. The court ignored the elephant in the room–the statutory and constitutional powers conundrum–in favor of a two-step dance: (1) a high-level defense of the judicial power to review executive decisions, including in the national security arena, and (2) a much more in-the-weeds approach to applying the traditional stay factors–one that opts against a macro-analysis of the government’s likelihood to prevail on the constitutional powers question and relies instead on a micro-analysis of the persuasiveness of the government’s case in overcoming allegations of individual constitutional rights violations (effectively adopting the approach of States Washington and Minnesota in their brief (pp. 14-20)).
What if this had been an executive order from a respected Executive, rather than Trump? Would the outcome & reasoning be the same, disregarding the question of whether or not someone like, say, Obama, would have ever bothered to even walk down this path?
Jane’s conclusion:
… the Ninth Circuit’s refusal to “fix” the TRO based on the practical complications involved functions as a commentary on the hasty, overinclusive nature of the underlying order itself. By refusing to modify the reach of the district court’s restraining order, the Ninth Circuit is, in a crucial sense, refusing to incentivize this kind of drafting practice from the executive branch in the future–drafting that, perhaps in the court’s view, errs on the side of maximum reach, maximum mess, and maximum collateral damage, and should not be rewarded.
(Bad Executive! Go lie by your dish!)
Trump may have a substantial backing, but it doesn’t appear to include the 9th Circuit. Hopefully, most judges and justices will understand that their loyalties lie to the Constitution and not to the Party – either one.
