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02/12/2017

Justice Jackson and Washington v. Trump
Michael Ramsey

Josh Blackman has set forth an amazingly complex, helpful and insightful series of posts on the Ninth Circuit's decision in Washington v. Trump (so many that I'm not even going to try to link to all of them, and will just say "read his blog").  So it's a little unfair to pick out one small piece and object to it.  Nonetheless, that's what I'm going to do.

Professor Blackman criticizes the Ninth Circuit panel decision for failing to cite the statute apparently authorizing the President's order and for failing to discuss Justice Jackson's famous three-category structure from the classic Steel Seizure case ((1) congressional approval; (2) zone of twilight; (3) congressional disapproval).  He writes:

Had the panel even bothered to engage with the statute, it would have realized we are in Jackson’s first zone, and that judicial scrutiny must be at an absolute[ ] minimum. The court should have presumed that when Congress afforded the President this power, it did not think Due Process controlled, for it failed to put in any review mechanisms (in contrast to countless other provisions of the immigration laws). There is every indication that, at least with respect to denial of entry, Congress agreed the President had plenary power.

I cannot accept that "judicial scrutiny must be at an absolute minimum" whenever the President acts pursuant to congressional approval.  If that were so, there would be almost no scope for judicial review of presidential orders, because presidential orders usually rest on some sort of congressional approval.  Presidential orders detaining people that the President thinks are suspicious, or prohibiting speech the President thinks is dangerous, would not subject to judicial scrutiny "at an absolute minimum" just because Congress has authorized them.  When an individual rights provision of the Constitution is in play (as it is in Washington v. Trump), the President's action isn't insulated by Congress' delegation.  The fact that Congress "did not think Due Process controlled" is largely irrelevant for the judiciary's independent review of the order's compliance with individual rights.  If Congress' statute delegated the power to infringe individual rights, then the delegation is unconstitutional, and while Congress presumably did not think it was unconstitutional, Congress could be wrong.  That's the meaning of an independent judiciary.

Of course, we can debate what level of judicial scrutiny is appropriate for alleged infringements of individual rights, but the proposition that Jackson's categories somehow lead to the "absolute minimum" seems mistaken.

It's true, as Professor Blackman quotes, Jackson wrote in Steel Seizure

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.   In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

I think it overreads this passage to find in it a license for minimal judicial scrutiny of presidential infringements of individual rights.  Rather, I think Jackson meant only that a separation of powers challenge to a presidential act done with the approval of Congress would face a heavy burden of persuasion.  Steel Seizure was not an individual rights challenge, and so Jackson had no reason to consider the role of courts in enforcing individual rights limits on the President.  Instead, Jackson was probably thinking of the fairly unusual situations where one might plausibly mount a separation of powers challenge even where the President acted with congressional approval -- either because Congress' delegation violated nondelegation principles or because Congress was trying to delegate a power it did not itself possess.  These are sometimes persuasive arguments, but they depend on unusual situations.  That, I think , is all Jackson meant.

I doubt that Professor Blackman believes that presidential action in the domestic sphere, where authorized by Congress, should receive only "absolute minimum" scrutiny (see here).  That Washington v. Trump involves national security and foreign affairs issues should not change the analysis.  It's the same Constitution.  Jackson's categories may be a useful way to frame the issues, but they should not be used to underwrite judicial abdication in foreign affairs.

I'll say as well, though, that I think the whole "level of scrutiny" issue in the Trump case is misconceived.  It's not the Ninth Circuit's role, in a due process analysis, to assess whether the President's order is wise (at any level of "scrutiny").  The question instead is whether the order deprives affected individuals of liberty (in the constitutional sense), and if so, whether that deprivation was accompanied by appropriate procedures.  Answering these questions does not entail an assessment of the merits of the President's order.  (Perhaps the question whether a stay should be granted turns on that question, a point I leave aside).  To that extent, at least, I think the panel asked the wrong question.  Even if the President's order is unsupported by evidence, it is constitutional if it does not deprive anyone of liberty without due process of law.  And even if the President's order is supported by evidence, it is unconstitutional if it deprives someone of liberty without due process of law.

On this ground, I agree with commentators who see the panel opinion as too broad, as apparently approving an injunction against the order even as applied to non-U.S. citizens outside the U.S. without either visas or green cards.  I do not see how people in this category plausibly could claim a constitutionally protected liberty  to travel to the U.S. (either as an original matter or under Supreme Court precedent).  And if they cannot, then there can be no due process clause violation as to them -- even if a court thinks the President's order is unsupported by evidence.  If the clause does not apply, then we are in an area of presidential discretion (either because the President has independent executive power, as I've argued, or because Congress has authorized the President's order).  Here indeed we are in an area of "absolute minimum" judicial scrutiny because there is no individual rights objection (to be clear, I'm only considering the due process objection, which is what the panel rested on) and because, as to a separation of powers objection, we are in Jackson's category one.  Thus it is the President's decision, for better or worse, not the courts'.

(As discussed here, though, I think this analysis may change once we consider people who have received some pre-existing approval to travel to the U.S. and have had that approval revoked).