Trump's immigration order and the courts

By Jim Wagner

I am dismayed at the lack of legal insight exhibited by the vast majority of commentators in their examination of President's Trump's executive order restricting the entry of certain classes of aliens into our country. I have read several articles on this hotly contested issue, and none of them seem to touch on the key points of law. If the 9th Circuit stay against Trump's executive order is overturned, as it should be, I believe that will be done based on lack of legal standing on the part of the Plaintiff States (Washington and Minnesota). There are aspects of standing that, to my knowledge, no one has as yet discussed in the context of Trump's order. For instance, standing must be "distinct." (But you won't see that in the blogger summaries.) I found the following in the Federal Practice Manual for Legal Aid Attorneys, which is accessible on line.

The (Supreme) Court expounded on (the principles of legal standing) in Warth v. Seldin, where the Court coined the phrase "distinct and palpable injury" to capture the requirement that plaintiffs must plead more than a generalized or undifferentiated grievance against the government.83 "Distinct" generally means that the challenged act or policy affects the plaintiff differently from citizens at large.... The Court explained in Warth that the prohibition against citizen standing and taxpayer standing did not derive from Article III. Rather, the requirements that a plaintiff suffer a distinct and palpable injury are "essentially matters of judicial self-governance."84 Thus, while the requirement of injury in fact is rooted in Article III, the requirement that the injury be distinct and palpable is a prudential limitation on standing created to effectuate the separation of powers. (Italics mine.)

The 9th Circuit has held that Washington State has standing because its colleges face imminent harm in that they will be denied employees and students from the countries named in the President's order, and that this will impair their ability to provide Washington students the "benefits of diversity." But whenever immigration is restricted in any way all colleges and universities, and for that matter all businesses – and even private individuals who might need to hire a taxi – face the same imminent threat of being deprived of employees from some country or countries. And they face this "harm" on the identical basis now claimed by the State of Washington. For that matter, under the present executive order all Americans face the imminent denial of the ostensible benefits of that diversity of which Washington says its students will be deprived. Thus neither the plaintiff State of Washington nor the colleges and citizens for which it claims to speak as proxy have standing because they are not distinctly harmed. Or to put it in the words of the Supreme Court, they are not "affected differently from citizens at large."

But beyond that, the requirement that an injury be "distinct and palpable" is not rooted in the powers of the judiciary (Article III.) Rather, it is "a prudential limitation on standing created to effectuate the separation of powers." In other words, the requirement that a plaintiff's injury be distinct exists because, were that not the case, every act of the legislature or executive (since all or nearly all laws adversely affect at least some large or general body of people) could be neutralized by the courts. And that would imbue the courts with absolute and final power over both the executive and the legislature in practically all matters, a power repugnant to the Constitution.

Try to imagine, if you will, any form of ban on immigration that would not impact at least some large group of Americans. Any policy allowing fewer immigrants would tighten the labor market, harming employers by driving up wages. Conversely, any policy admitting more aliens would mean a larger labor pool with lower wages, and that would harm native born workers. Even the ban on all aliens, which I suggest President Trump should proclaim because it would foreclose any religious or national origin challenges to his order, would deny each of us "the benefits of diversity" and thus be open to challenge by the reasoning of the 9th Circuit. So according to the 9th Circuit, no matter what our immigration policy might be some group would be entitled to sue. Evidently the 9th Circuit is not overly concerned with its duty to apply "judicial self-governance," let alone with its proper deference to "the separation of powers."

Another glaring basis for lack of standing in this case arises from what the Supreme Court has called "The Zone of Interest Test." Continuing from the Federal Practice Manual:

Beginning in Association of Data Processing Service Organizations Incorporated v. Camp 151 , the Court has required that plaintiffs establish that their grievance "must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit."152 This prudential limitation on standing is "founded in concern about the proper – and properly limited – role of the courts in a democratic society."153

In Block v. Community Nutrition Institute, the Court suggested a liberal standard for applying the zone-of-interests test.157 A plaintiff fails the test when there is express legislative intent to preclude review.158 The presumption is in favor of judicial review, which may be overcome only by clear and convincing evidence found in the legislative scheme.159 Subsequently, the Court expressly stated that the zone-of-interest test "is not meant to be especially demanding," precluding standing only when "the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be assumed that Congress intended to permit the suit."160

So what can we assume with regard to the 1952 Immigration and Nationality Act upon which President Trump expressly relied when issuing his order? Are "plaintiff's interests so ... inconsistent with the purposes implicit in the statute that it cannot be assumed that the Congress intended to permit the suit?" Setting aside the Court's befuddling double negative, along with the very rational national security interest pursuant to which Congress passed the 1952 Act, an interest which must be weighed against the alleged harm to plaintiff not merely in the present circumstances but in all potential circumstances under which the statute might be invoked, does the "legislative scheme" of the statute provide "clear and convincing evidence" that Congress intended the presidential authority to ban "aliens, or classes of aliens" to lie beyond judicial review? Section 212(f) of the 1952 Act states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

As background it must be noted that the Congress has undisputed Constitutional authority to bar judicial review by all courts other than the Supreme Court, and even to block appellate review by the Supreme Court itself. (These powers are stated in Article I, Section 8, clause 19; Article III, Section 1; and in the "Exceptions" clause of Article III.) The language of the 1952 statute, while not explicitly denying jurisdiction to the courts, practically oozes with verbiage placing the banning of aliens the president "deems" would be "detrimental to the interests of the United States" at the sole discretion of the president. Regarding the verb "to deem," legaldictonary.com has this to say. "To deem is to consider something as having certain characteristics. For example, when an act is deemed a crime by law, then it is held to be a crime. If someone is deemed liable for damages, then s/he will have to pay them."

From this it follows that if a president "deems" certain aliens to be "detrimental to the interests of the United States," then as a matter of law they are detrimental. As such, he can deal with them, according to the statute, "as he shall deem necessary." Is this not "express legislative intent to preclude review?" It is hard to imagine language more clear, unless it were to say "at the president's sole discretion and beyond legislative review by any court." But in effect that is exactly what the Congress did say in writing this national security statute, albeit more tactfully. At the very least, it "cannot be assumed that congress intended to permit the suit" now being brought against President Trump's executive order.

And what did the Congress mean when it authorized the President to act "by proclamation." The Free Dictionary on Line elaborates thusly on the legal meaning of proclamation: "The president's proclamation has not the force of law, unless when authorized by congress; as if congress were to pass an act, which should take effect upon the happening of a contingent event, which was to be declared by the president by proclamation to have happened; in this case the proclamation would give the act the force of law, which, till then, it wanted." Wikipedia elaborates on the authority and precedent of congressionally authorized presidential proclamations, but that more detailed explanation is too lengthy to include here. You can review it yourself at https://en.wikipedia.org/wiki/Presidential_proclamation

Though the foregoing hardly requires translation, you may take all this to mean that in 1952 Congress in effect passed a presidential executive order by statute, but left it to future presidents (in this case Donald Trump) to determine by proclamation the time and particulars of its implementation. Thus, when the president issues a proclamation statutorily authorized by Congress, he is not merely issuing an executive order. He is in fact awakening a Congressional statute which has lain dormant in legal anticipation of his proclamation. That is to say, as a precise legal point, that Donald Trump has not merely issued an order on his own executive authority in the realm of national security. What he has done in addition – and this is key – is to evoke a statute passed by Congress 65 years ago and signed into law by then President Eisenhower. And he has done this in precisely those terms that the statute required.

This means that in blocking the President's immigration ban the 9th Circuit is not merely obstructing a presidential executive order. It is, in addition, blocking the Constitutional authority of both the President and the Congress in a matter of foreign affairs where they alone share jurisdiction. The 9th Circuit, to put it more plainly, has presumed to simultaneously overrule both of the other two branches of government, and has done so in an arena specifically set aside for those other two branches by the Constitution itself. But beyond that, it has thwarted an act by that body of government, namely the legislature, that has the Constitutional authority to exclude the Court's jurisdiction over specific laws, and by a plain reading of the 1952 statute would seem to have done so in this matter. (Curiously, the 9th Circuit ruling makes no reference to the statute upon which President Trump quite explicitly relied.)

One of the objections the 9th Circuit raised against Trump's temporary immigration ban was an ostensible due process requirement that the President must first "give notice" of his intent to restrict certain classes of aliens. But the correct understanding of Trump's lawful proclamation pursuant to the 1952 statute renders that argument absurd on its face. The 1952 statute itself is the requisite due process notice. The notice for any statute passed by Congress and signed by a president consists in the time elapsed between the date upon which it is signed into law and the date upon which it goes into effect. Moreover, there is no additional notice requirement in the relevant statute upon which the Trump order relies. You have heard, I am sure, that ignorance of the law is no excuse. Plaintiffs in this case, like everyone else, have been on notice with respect to President Trump's executive order since 1952.

Standing for the State of Washington, as erroneously granted by the 9th Circuit, would result in legal chaos. Anyone could block nearly any law or executive act merely by showing non-distinct harm in all cases where judicial review was not expressly banned by statute. In 2010 the State of Arizona, finding that its schools and social services were being overwhelmed by a flood of recent illegal aliens, passed SB 2010, a state statute which, among other things, authorized Arizona's law enforcement personnel to assist the Federal Government in the apprehension of persons illegally in our country. President Obama, whose policy it was to enforce the Federal immigration laws only selectively, sued the State of Arizona asserting Federal primacy in matters of immigration.

The Supreme Court ultimately ruled, ironically in support of the 9th Circuit's own verdict on appeal, that Arizona could not pass state laws concerning immigration even if those laws were ordered to assist the Federal Government in the enforcement of its own existing immigration laws. The Supreme Court affirmed the 9th Circuit's view that "The Federal Government's broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to 'establish an uniform Rule of Naturalization,' Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations." https://www.law.cornell.edu/supremecourt/text/11-182

But how was Arizona's attempt to usurp Federal authority in the matter of immigration different in principle from that of the State of Washington in the present case? Could the State of Arizona not speak on behalf of its injured students? Apparently not! The Supreme Court unequivocally affirmed that Arizona had no Constitutional power even to assist Federal authorities in the enforcement of our national immigration laws. Quite obviously, Arizona also lacked "standing" to obstruct the Federal Government in such matters. And yet the same 9th Circuit that ruled against Arizona now believes the State of Washington has standing, not to assist the Federal authority, but rather to block it in its immigration policy. This stands Constitutional logic on its head.

The 9th Circuit has both overstepped its authority and misinterpreted the Constitution and the law by blocking President Trump's executive order (which, by the way, employs the precise language of the 1952 statute). If this ruling stands, it will confirm that a coup has taken place; that we are now under a tyranny of the judiciary. So here is the bottom line. Nearly every tax and regulation enacted by our Federal government harms me in some way. Do I have standing to sue? Sure I do! Just get me in front of the 9th Circuit!

© Jim Wagner