After having examined a ruling from the Pakistan Supreme Court a few weeks ago, this week I chanced to read the ruling from the State of Washington v. Trump case.
In this, the 9th US Circuit Court of Appeals denied the attempt to reinstate President Trump’s immigration ban. You can read the full ruling here.
I’m not going to editorialise on this topic much, being neither a lawyer nor an American. Indeed this blog is more a request for explication than an attempt at explanation.
Authority and evidence
The first thing that caught my attention was how definitively the Court dealt with President Trump’s claim that he had “unreviewable authority” in this matter. The Court describes how:
“the Government has taken the position 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”
In response, the Court unambigiously replied that:
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy”
If the situation is this clear cut, one wonders why the Trump administration ever thought this claim would succeed.
Did they know this argument would be rejected but made it anyway? If so, why?
What is also puzzling is that the Trump administration did not submit intelligence reports to the Court to evidence their claim that the targeted immigrants presented a threat. They only inferred they had this evidence. The Government stated that:
“[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.”
This argument didn’t persuade the Court because the Court was eligible to see such classified information. As the Court noted:
“the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality.”
It seems odd that the Government first makes a claim of “unreviewable authority”, which seems to have been destined to fail, and then fails to give evidence that would have strengthened its case immeasurably. What is going on here?
I will leave it to someone more informed in the law and US politics to speculate. In particular, I’d really like to hear the podcaster Dan Carlin reprise his conversation with the Harvard Law Professor Lawrence Lessig and address this topic.
The U.S. Constitution: a light that never goes out?
In these, Carlin frequently stresses the dangers of temporarily putting the U.S. Constitution to one side.
Let me give you a few passages from the ruling to illustrate:
The Court notes Boumediene v. Bush (2008) ruled that the political branches lack:
“the power to switch the Constitution on or off at will”
It recalled that Ex parte Milligan (1866) stated:
“The Constitution of the United States is a law for rulers and people, equally in war and in peace… under all circumstances.”
And it invoked United States v. Robel (1967) which determined that:
” ‘National defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.“
Another interesting part of the ruling pertaining to the Constitution related to the rights it gives to non-citizens.
For example, the Court described how the Fifth Amendment (which prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.”), and specifically its Due Process Clause, is:
“not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent…. These rights also apply to certain aliens attempting to reenter the United States after travelling abroad.”
Land of the Free, Home of the Brave
The U.S. Constitution is a remarkable document, but nothing is an inviolable bulwark against humanity’s darker passions.
Back in 1789, in his Undelivered First Inaugural Address, George Washington warned that:
“Should, hereafter, those who are entrusted with the management of this government, incited by the lust of power and prompted by the supineness or venality of their Constituents, overleap the known barriers of this Constitution and violate the unalienable rights of humanity: it will only serve to shew, that no compact among men… can be pronounced everlasting and inviolable… that no Wall of words, that no mound of parchment can be so formed as to stand against the sweeping torrent of boundless ambition on the one side, aided by the sapping current of corrupted morals on the other.”
In contrast, it was fear that Roosevelt would memorably warn of:
The antidote to fear is courage, which Paul Krugman duly prescribed to Americans in his recent article “when the fire comes“:
“Institutions are only as good as the people who serve them. Authoritarianism, American-style, can be averted only if people have the courage to stand against it….In the end, I fear, it’s going to rest on the people — on whether enough Americans are willing to take a public stand. We can’t handle another post-9/11-style suspension of doubt about the man in charge; if that happens, America as we know it will soon be gone.”
A Land of the Free must by necessity be a Home of the Brave.