By Scott Weiser
President Trump should have tweeted “It ain’t over till the fat lady sings” rather than “See you in court.” In fomenting a constitutional crisis that all but guarantees a “nuclear option” confirmation of Judge Gorsuch to the Supreme Court, the federal 9th Circuit Court of Appeals predictably threw a bowl of legal spaghetti against the wall yesterday hoping something would stick. Some eighty percent of the time however its liberally-lubricated opinions slide right off into the garbage heap of anti-Republican activism the court is known for, as will this abstruse and recondite bit of legalistic pettifoggery.
In ruling against President Trump’s statutory power to ban immigration based on his sovereign judgment about the national security interests of the United States, 9th Circuit judges William C. Canby, Richard R. Clifton, and Michelle T. Friedland ignored just about every judicial rule there is in their zeal to obstruct the President while ignoring completely the Supreme Court case that is really the only thing they needed to pay attention to.
The case, Commonwealth of Massachusetts v. Mellon, decided in 1923 makes it clear that the courts have no power to substitute their judgment as to the need to enforce a presumptively-constitutional statute for that of the Executive branch and that a state cannot sue the federal government on behalf of its citizens for abstract, potential or future injuries.
In Mellon, Justice Sutherland wrote “We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.”
In their complaint the states of Washington and Minnesota argued that because some foreign students and faculty of its universities might be unable to travel to the United States this constituted justiciable harm and further that the state has authority to stand in place of the foreigners who have been temporarily discommoded. The 9th Circuit opinion ignores the “direct injury” requirement entirely by straining to put the states in a third-hand position of representing a foreign national, presumably one with either a permanent resident card or a valid travel visa, who has been temporarily denied entry.
But the Mellon Court makes it perfectly clear that neither Washington nor Minnesota have such standing, writing “The party who invokes the power must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right.”
Neither Washington nor Minnesota would or did suffer any direct injury because a few foreign nationals are temporarily unable to attend their universities. The foreign nationals might have standing, but not the states nor the universities. More importantly neither Judge Robart of the Seattle District Court nor the states of Washington or Minnesota nor the 9th Circuit Court of Appeals so much as mentioned, much less questioned the validity of 8 U.S.C. § 1182(f), the statute under which the President is authorized to ban immigration as “he may deem to be appropriate.”
Back to the Mellon decision, Justice Sutherland says “Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional, and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.”
Applied to this case, what those words mean is that even if the states had standing to sue in the first place the court’s authority is not to inquire into the President’s motives or second-guess the President in his national security decisions, but rather it’s only legitimate authority would be to rule unconstitutional the statute under which President Trump issued the Executive Order, not inject it’s own opinion of whether or not the President has sufficient justification for exercising that authority.
The Congress makes the law, the President administers the law, and the courts decide if the law and the application of that law in a particular case is constitutional. The court has no authority to inquire as to the President’s motives for enforcing the law, which is what the oral arguments made by the 9th Circuit judges showed it to be doing.
The legal spaghetti the 9th Circuit judges threw together created a constitutional crisis that the Trump administration must challenge and defeat because not to do so is to abdicate to the courts the congressional and presidential power to control immigration and provide for national security, which is an unconstitutional violation of the Separation of Powers Doctrine.