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Looking beyond the case of Washington v. Trump

SCOTT PIEPHO
Cases and Controversies

Published: February 17, 2017

The United States Constitution endured its first real test of the administration of President Donald Trump. Thus far, American constitutionalism appears to be holding its own, although the current controversy is hardly over. And there will be more.

With great fanfare, President Trump issued an ambiguously worded, executive order that indiscriminately excluded from the country citizens from seven majority Muslim nations. The state of Washington sued to block the order, claiming that state institutions—namely the state’s universities—would be harmed because individuals covered by the ban either cannot reenter the United States or cannot travel without risking of being shut out.

The district court issued a temporary restraining order stopping the executive order from going into effect, prompting the president’s regrettable “so-called judge” rant. The administration appealed, asking the 9th U.S. Circuit Court of Appeals to lift the TRO. On Thursday, Feb. 9, the court issued a unanimous per curiam opinion leaving the stay in place.

The opinion first disposed of some technical issues, the court refused to vacate the TRO, finding that the government was unable to prove the likelihood of success on the merits of Washington’s due process claim. Two judges appointed by Democratic presidents were joined by Judge Richard Clifton, appointed by President George W. Bush.

Washington also argued that notwithstanding its facial neutrality, the underlying purpose of the law was to discriminate against certain immigrants or refugees based on their Muslim faith. The court also acknowledged that the state appeared to make a colorable case for this claim although it did not rule on it.

The court rejected the administration’s argument that the president’s authority over immigration is unreviewable, particularly when he invokes national security. The president has struck a defiant tone and administration officials have repeated the claim of his unreviewable authority. While presidents have criticized court decisions with which they disagree, longtime court observers have made the case that Trump’s stridency far exceeds that of past presidents.

But for all that, the administration at this point appears willing to act within the bounds of the three-branch system, even while officials question the legitimacy of that system. It says something about our political moment that we both celebrate and breathe a sigh of relief over the basic structure of the government holding, but let’s take what we can get.

The administration’s next move is unclear at this writing. The president can appeal the decision to the Supreme Court, he can continue to press his case for the soundness of his order in district court or he can issue a revised order that responds to the concerns cited by the courts.

The circuit court's opinion reaffirmed the president’s broad discretion regarding immigration and admission of refugees and offered a roadmap for fixing the most obvious problems with the executive order. A subsequent order will likely survive challenge if it makes clear that lawful permanent residents are not covered and affords some basic due process opportunities for covered individuals who are entitled to them. After that, President Trump can tighten up restrictions a great deal as long as the order offers a clear opportunity for individual cases to be heard, even if they have little chance of overturning the exclusion.

In other words, it is quite easy for a president to enact immigration restrictions as functionally harsh and immiserating but with just a dollop of due process that the courts will then defer to.

The best policy case against Trump’s draconian immigration order is that it does a bad job of protecting the United States. We need policies that use our limited resources to identify and respond to specific threats—whether that means deporting the truly dangerous undocumented immigrants or identifying specific individuals attempting to enter the country with bad intent. The administration’s wide-net approach absorbs resources and distracts attention from the fine-grain work of identifying and responding to such threats.

The court’s order points in that direction, but can only go so far. The due process rights of individuals like green card holders and allegedly undocumented immigrants require the government to offer them individualized treatment, not blanket condemnation. But once a mechanism for those particularized determinations is in place, the executive is entitled to a great deal of deference.

As necessary as the decision in Washington v. Trump was, it offers no substitute for a rational security policy. The courts are willing to intercede when the president’s policies exceed constitutional bounds, but few, in the administration or in Congress, appear willing or able to debate the president about whether his blanket order works as a matter of policy.


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