Executive Orders and the Ninth Circuit: A Malpracticepalooza!

Aaaaaaaaaannnnnnd . . . We’re Back — Again!
February 11, 2017
Kudos to CBS, Which Actually Aired This!
February 11, 2017

Executive Orders and the Ninth Circuit: A Malpracticepalooza!

Well, I don’t think that went quite like they planned.

I would like to say “I told you so,” but . . . well, o.k.  I told you so.  Here.  The most relevant part:

What I wonder, though, is why people think that Trump will actually be able to do these things (other than marry a beautiful woman—he’s got a proven track record on that), when so many of the people who understand our system of government much better than Trump have not been able to do them.The Trump supporter will answer that Trump will succeed precisely because he’s not part of the government, and thus not part of the problem. It’s BECAUSE he’s an outsider that they can rely upon him to accomplish what he says he’s going to do.

What these people fail to realize is that Trump will have to work with and within the same government structure that every other politician—every other president—has to work within. Trump will still have to work with a divided Congress—particularly, at this point, a divided Senate. And a Supreme Court. He can’t change that—unless we just want to shred the Constitution. He will still be subject to the checks and balances of every other President.

So, he will have to deal with a Supreme Court which may strike down his immigration and religious test policies, or his restriction on free speech by “shutting down parts of the internet.” He will have to deal with a Congress that may choose not to fund his wall, or approve his cabinet members, or pass his budget or legislation. Pick your issue; he’ll still be operating under the same rules and restrictions as every other president.

Now, just 3 weeks into his presidency, we’ve seen this play out in spades.  Let’s break it down:

First, the Federal District Court judge and the Ninth Circuit got it wrong.  Period.  Full stop.  For a whole host of reasons.

Initially, the states of Washington and Minnesota didn’t have standing to sue.  In other words, they should not have been allowed to bring the suit in the first place, and that for two reasons.  One is that they are not the “persons” who would suffer harm.  The states were bringing the suit on behalf of their state universities.  But that’s not how our legal system works.  The injured parties must bring the action themselves—someone else can’t bring the action for them or on their behalf, unless the injured parties are incompetent in some way.  Now, we can have a discussion about the competency or incompetency of our state institutions of higher learning, but what we’re talking about is legal competency—i.e. being a minor, or being intellectually disadvantaged, or . . . oh.  Well, if that’s the theory the court was going on, it could at least have said so!  Otherwise, the universities should have brought the suit themselves, and the states should have been kicked out of court.

The second reason that the lawsuit should have been dismissed on jurisdictional grounds is that the lawsuit only alleged, as the Ninth Circuit found,“potential claims” regarding “possible due process rights” of aliens—even illegal aliens, who have no rights until they actually land on U.S. soil.  There’s so much wrong here it makes the head hurt, but let’s start with the fact that our courts are only supposed to take up cases that allege actual injuries.  Potential claims, theoretical injuries and the like don’t cut the mustard.  Thousands of lawsuits are dismissed all across our country every year because they only allege prospective, possible injuries, not actual ones.  Pleading an actual injury becomes more imperative when the court doesn’t even know if the alleged due process rights even exist!  Here the court only found “possible due process rights”—not actual established rights.  So what the court essentially said is, “States, alien immigrants may have some rights (at this point, we don’t really know) which may, at some point, be infringed by this executive order (at this point, we don’t really know), which infringement may be injurious ini some fashion to your state universities (at this point, we don’t really know), so we’re going to allow you to stop the president from executing his oath to defend this country from enemies foreign and domestic.”  Sound about right?

And those are only some of the procedural problems with the court’s ruling.  On the merits, the president has—or is supposed to have—full power to enforce our immigration laws as he sees fit to further the safety and security of our nation. The court found that the government presented no evidence that any person from one of the seven affected nations has ever committed a terrorist attack in the United States.  But that’s not the standard, and if it was, it would be ridiculous.  What the court was essentially saying is that the president would have to wait for such a terrorist attack to actually occur before he can try to prevent it.  Brilliant, huh?  But it gets worse—the fact is that there have actually been terrorist plots in the U.S. by immigrants from some of those countries—fortunately thwarted before they could be executed.  But the court either didn’t know that or, if it did, failed to consider it.  If it didn’t know, then the government lawyers committed legal malpractice.  If the court knew that but simply failed to consider it, then it committed judicial malpractice.

Regarding those government lawyers, I was flabbergasted by what I heard when I listened in on a small portion of the government’s argument (the part I heard was the argument about the states’ standing to sue).  It was horrible.  The court asked probing questions which challenged the government’s position, which it is rightly supposed to do.  The questions were predictable, and should have been extensively prepared for beforehand.  The lawyer for Trump responded as if he had been caught checking his Facebook status.  Lengthy silences, followed by a lot of stammering and weak responses.  You can’t do that in the trial court, and you sure can’t do that at the appellate court stage.  I have personally never argued a case in front of an appellate court (though I have briefed dozens of appellate arguments), but I have made hundreds of arguments in front of trial court judges, standing at the bench, looking the judge and opposing counsel in the eye, with only a notepad to prompt me.  I can tell you that you simply can’t get caught contemplating your navel.  The government lawyers in this case were on the phone, presumably at a desk or conference table with all the notes, computers, and other lawyers they could wish for support, and still they sounded like first-year law students.  It was embarrassing.

Having said all of that, let me end with a few thoughts on the executive order itself.  First, it is not a ban on Muslims.  It’s not even a ban—it’s a temporary suspension for a few months until our vetting procedures can be . . . well, vetted, and strengthened.  And, it’s not directed towards Muslims.  It’s directed towards nations, specifically Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.  These are nations that are either a hotbed of Islamic terrorism, or support Islamic terrorism.  If it had been a ban on Muslims, the most obvious targets (in addition to the foregoing) would be Saudi Arabia, Egypt, the UAE, Qatar, and many, many more.  Even Holland, France, Great Britain and Germany have very large Muslim populations.  In other words, the focus was geography and geopolitics, not religion.

There can be no question that the Executive Order was a complete disaster.  Although it was appropriately vetted by relevant legal counsel, the execution was horrendous.  It was unclear and confusing.  Appropriate governmental executives were not properly briefed on content, application and implementation.  Congress was not given a heads-up or included in the process (not a constitutional requirement, but a practical courtesy).  As long as we’re talking about malpractice, this was governmental (presidential?) malpractice.

Which brings us full circle back to my initial observation—this president has promised to do a whole lot of stuff over the next four years.  Much of it seems to be pretty popular, and there’s probably a lot of good policy buried somewhere in all those tweets and hair gel.  But until he learns how our government actually functions—including the procedural and legal pitfalls—he’s going to have a tough time getting much done.

Can he be taught?  Does he want to be?  Stay tuned.

Scott Gosnell founded Pros and Cons in 2003. He also has a day job as a practicing attorney in Birmingham, Alabama, which explains his complete irresponsibility with regards to his blogging schedule. In a former life he worked in several churches as a youth minister, where he was forced to do unspeakable things like chew ABC gum (Already Been Chewed), bob for liver (uncooked), and participate in condiment wrestling. Hey, would you look at that – I guess they are speakable. In addition to the practice of law, Scott is a certified law enforcement officer with the Jefferson County Sheriff's Office and the Alabama Historical Ironworks Commission, and a tactical firearms instructor. Scott and his wife, Donna, have three children, Caleb, Hannah Beth, and Austin. He also has a dog named Sierra and a cell phone named Curtis.

1 Comment

  1. BB says:

    I TRIED to read this, I really did. But medium gray letters on a light gray background is IMPOSSIBLE TO READ.

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