James Robart, the U.S. district judge in Washington State, offered little explanation for his decision to stop President Trump's executive order temporarily suspending non-American entry from seven terror-plagued countries. Robart simply declared his belief that Washington State, which in its lawsuit against Trump argued that the order is both illegal and unconstitutional
Now the government has answered Robart, and unlike the judge, Justice Department lawyers have produced a point-by-point demolition of Washington State's claims.
Point by Point
1.Justice Department argued that Robart's restraining order violates the separation of powers, encroaches on the president's constitutional and legal authority in the areas of foreign affairs, national security, and immigration, and "second-guesses the president's national security judgment" about risks faced by the United States.
2. Judge Robart has no standing, background in foreign affairs of the United STates. Robart has never been briefed by the intelligence community on conditions in Yemen, Somalia, Libya, and the rest. Nor has Robart EVER received the President's Daily Brief.
3.The government argued that a U.S. District Court judge has no legal right to stop a presidential action in which the president exercised his own constitutional power to conduct foreign policy, as well as power delegated by him to Congress in the area of immigration. The political branches of government have plenary authority over those areas, the government argued, citing cases from 1950, 1952, and 1999:
Judicial second-guessing of the president's determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches' plenary constitutional authority over foreign affairs, national security, and immigration. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) ("[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government."). "[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." Knauff, 338 U.S. at 543; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).
4. The government argued, "courts are particularly ill-equipped to second-guess the president's prospective judgment about future risks." The reason: "Unlike 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."
5. the Justice Department argued that, specifically in the context of immigration, "the Supreme Court has 'long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government's political departments largely immune from judicial control.'" "When Congress delegates this plenary power to the executive, the executive's decisions are likewise generally shielded from administrative or judicial review."
6. The government went on to add that...Earlier presidents have "repeatedly invoked this authority," the government brief argued, noting actions by Presidents Reagan, Bush I, Clinton, Bush II, and Obama. The Supreme Court even ruled in 1993 that the president had "ample power" to order a naval blockade to keep out Haitians trying to enter the United States. Surely he has the authority to stop a Libyan, in Libya, from receiving permission to enter the United States.
7. Washington state lawyers argued that Microsoft alone employs nearly 5,000 H-1B visa holders, and that is in addition to those working for Amazon, Expedia, and Starbucks in the state. Therefore, the people of Washington State have legal standing to challenge the Trump order.The government responded that, whatever Microsoft's hiring preferences, the law is clear:
The [Immigration and Naturalization Act]'s carefully reticulated scheme provides for judicial review only at the behest of an alien adversely affected, and even then only if the alien is subject to removal proceedings. Under longstanding principles exemplified by the doctrine of consular nonreviewability, an alien abroad cannot obtain judicial review of the denial of a visa (or his failure to be admitted as a refugee). It follows that a third party, like Washington, has no "judicially cognizable interest" in such a denial.
In other words, a state cannot stop a president's national security directive to satisfy the wishes of a particularly big business in that state.
8. Washington State also argued that the president's authority under the Immigration and Naturalization Act of 1952 to deny entry to "any aliens or any class of aliens" was later limited by a 1965 amendment that "prohibits discrimination in On the larger question of the Trump order's constitutionality, the government makes a very simple point: foreign nationals in foreign countries do not have U.S. constitutional rights:the issuance of immigrant visas on the basis of race, nationality, place of birth, or place of residence." The Trump order, Washington State lawyers argued, along with intent revealed in statements made by candidate Trump during the 2016 campaign, are discriminatory and violate the amended immigration act.
Not so, argued the Justice Department. "This restriction does not address the president's authority…to 'suspend the entry' of aliens, which is an entirely different act under the immigration laws," the Department argued. "An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border." Beyond that, the government said, the lawsuit's argument could lead to an absurd end:Washington State's interpretation…would lead to the untenable result that the United States could not suspend entry of nationals of a country with which the United States is at war, which would raise a serious constitutional question about Congress's ability to restrict the President's Article II authority to ensure the nation's security.
9. On the larger question of the Trump order's constitutionality, the government makes a very simple point: foreign nationals in foreign countries do not have U.S. constitutional rights:
The vast majority of the individuals that Washington State claims are affected by the Executive Order are aliens outside the United States, but it is "clear" that "an unadmitted and nonresident alien" "had no constitutional right of entry to this country as a nonimmigrant or otherwise." Mandel, 408 U.S. at 762; see Plasencia, 459 U.S. at 32. This is fatal to Washington's facial challenges, which require it to show that there is no constitutionally valid application of the order. Even if the state could show a constitutional violation with respect to some individuals — and it cannot — they plainly cannot establish such a violation as to non-resident aliens who are outside the United States and who have no prior connection to this country…The district court's sweeping injunction…conflicts with the basic principle that "an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 32 (1982).
10. To make its case, Washington State lawyers cherry-picked several Trump statements from the campaign to demonstrate alleged presidential intent to deprive Muslims abroad and in the U.S. of their constitutional rights.The Justice Department responded in four different ways. First is the argument that no foreign national in a foreign country has U.S. constitutional rights to violate. Second is that the Trump executive order covers countries previously identified by Congress and the Obama administration as terrorist hot spots and is therefore not based on Trump's alleged animus toward a particular religion. Third, the order does not target Muslims specifically. And fourth, and perhaps most importantly, it is not the role of a U.S. district judge to divine the president's motives:Washington State argued that the district court should disregard the president's stated rationale for issuing the executive order because Washington State believed it was prompted by religious animus toward Islam.
That argument is wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770 (1972), which held that, "when the executive exercises" immigration authority "on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion[.]" Cf. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel's "reasoning has particular force in the area of national security"). Here, as another district court has recognized, the executive order undeniably states a facially legitimate and bona fide reason — ensuring the "proper review and maximum utilization of available resources for the screening of foreign nationals" and "that adequate standards are established to prevent infiltration by foreign terrorists." Order, §§ 3(c), 5(a), (c); see Louhghalam, Order 18-19. The order does so in part by incorporating a list of seven countries that were identified by Congress — and by the Executive in 2016 — as raising terrorism-related concerns.
11. Spiking the football...In fact, while Judge Robart decreed that the interests of Washington State would be harmed by the Trump order, the government argued that the interests of the presidency, and of the Constitution, would be harmed by Judge Robart's decision. "Judicial intrusion on the political branches' exclusive authority over the admission of aliens, by violating the separation of powers, in itself constitutes irreparable injury," By the end of the Justice Department's 24-page brief, Judge Robart's, and the state of Washington's, argument lay in tatters.