Today, the 9th Circuit denied President Trump’s appeal that would have reinstated his Executive Order on immigration. This opinion addressed only a preliminary question of whether the Executive Order will remain in effect while its constitutionality is fully argued in a lower court, but it reveals the trouble that the Government will have defending it.
One of the Government’s arguments was that “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene constitutional rights and protections.”
The court rejected that argument.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
The Government also argued that “if the four corners of the Executive Order offer a facially legitimate and bona fide reason for it […] the court can’t look behind that.” In this argument, they were trying to prevent the court from considering statements, tweets, and interviews by President Trump and his advisors that could reveal that the Executive Order was, in part, religiously-motivated.
The court rejected that argument.
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.
The Government also tried to rely on “authoritative guidance” from White House counsel that the Executive Order does not affect legal permanent residents. The Government argued that the court should understand the Executive Order based on the most recent interpretation by the White House counsel. The court was concerned about the Government’s “shifting interpretation”, and rejected that argument.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
The most interesting part of my past week was listening, along with a hundred thousand other people, to this case’s oral argument. It was a display of the kind of work the judiciary does every day: checking whether the case should even be before the courts, probing the limits of the arguments presented by each side, and at the core, just trying to understand the case and arguments before them so they can correctly apply the law.
There is nothing better than an adversarial dispute to crystallize the meaning of a statute, the limits of Government power, or the extent of our rights. I’ve spent as much time reading appellate opinions as any other material over the past few years. It’s not because I miss first year philosophy or want to be a lawyer; it’s because they contain tough questions that reveal how the various parts of our society fit together. And, much of it is decent writing. They are written as much for us as they are for lawyers. Good journalism answers “so what”, but nothing can sub in for the opinion itself.
Here are some of the law people I’m following on Twitter who give context to significant cases and insight based on their personal experiences with the courts (and also, some entertainment).
And here are a couple of sites that present primary sources: oral argument audio, transcripts, briefs, opinions.
I haven’t found anything close to the same for Canada. But, you can search our Supreme Court’s judgements by date, topic, party, etc. here. (Try to find the one where a farmer harvested, saved, and planted Monsanto seed across 95% of his farm and then claimed he wasn’t using it.)