Imagine a President encountering legal headwinds as he took action to preserve the safety of the nation. Imagine a citizenry forced to consider the justifications of officers of two separate branches of the federal government, both claiming institutional powers of review.
No, this isn’t last week, but rather a constant state for 1930s Supreme Court jurisprudence, during which Justice George Sutherland (1862-1942) served as model of probity. Franklin Roosevelt expanded the reach of the executive branch into novel areas, including those related to foreign affairs. While the Court reined in the President in many respects (invalidation of the New Deal’s National Recovery Act, among others) in some cases it was called upon to vindicate the executive’s actions. In both scenarios, it was often led by Sutherland. Today it could fall to the Supreme Court to vindicate President Trump’s executive order temporarily halting the entry of refugees and also of immigrants from a list of countries afflicted by jihadist elements.
In its February 9 opinion in Washington v. Trump, a three-judge panel of the Ninth Circuit Court of Appeals ruled against the administration’s request to stay a lower court’s ruling halting the restriction order. To be sure, the administration created an unusually chaotic environment around the implementation of its policy, for which it deserves blame. Including permanent residents in the executive order gave an opening for enterprising lawyers to challenge it on contestable grounds (to at least one district court judge) of state standing, and for television cameras to find sympathetic individuals caught at airports or otherwise unable to enter the country.
Nonetheless, the February 9 decision only further complicates matters. Two cases highlighted by legal scholar Hadley Arkes in his 1994 book The Return of George Sutherland provide a useful lens through which to view the Ninth Circuit’s per curiam opinion.
Justice Sutherland’s majority opinion in United States v. Curtiss-Wright Export Corp. (1936) provides a stunning contrast to the Ninth Circuit’s handiwork. Curtiss-Wright centered on the primacy of the executive in handling foreign affairs, specifically a federal question of legislative delegation to the executive of the authority to issue an embargo. Congress delegated authority to President Roosevelt to embargo arms shipments to belligerents in the conflict between Bolivia and Paraguay known as the Chaco War.
The United States was never a party to this conflict; and yet, would it matter? Justice Sutherland understood that martial conflict cannot always be met with a congressional declaration of war even as the defense of the country is required. He wrote:
It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.
Often, war is a fact that must be acknowledged and acted upon by the one branch with the ability to act swiftly, the executive. Sutherland took care to note how different the case would have been had it concerned presidential power exercised in the domestic realm:
The differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted. The two classes of powers are different, both in respect of their origin and their nature.
He understood that function follows form. In the domestic realm, the Constitution secures the rights and privileges of the citizens. But even if we knew nothing about the myriad rights and privileges that a country’s constitution supported, an executive of the national government in some form would still be responsible for maintaining a sovereign defense. That responsibility is never “out of session” as a legislative or judicial body often are.
The issuance of the arms embargo by FDR laid bare a certain reality, writes Arkes:
The ritual of invoking statutes merely conceals a truth that jars with the notion of modern constitutional government, namely that the Executive may have to act with a wide discretion, unconstrained by statutes, and those actions may claim the full force of the law.
To the Ninth Circuit judges’ assertion that “the Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” National Review’s David French neatly responds: “The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike.” French and other commentators critical of the opinion rightly have read into the Article II powers of the executive what John Marshall, then serving as a Representative from Virginia in the House of Representatives, referred to as the “sole organ” doctrine. In a floor speech in the House in 1800, Marshall referred to the President as “the sole organ of the nation in its external relations.”
Article II does not specify the precise powers of the executive in foreign affairs. Indeed, one of the Trump administration’s strongest arguments is not that it is asserting executive power broadly conceived, but that it can point to 8 U.S.C. § 1182(f), in which Congress delegated statutory authority to the executive when it comes to the free flow of persons into the United States. That section of the statute reads:
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.
Noticeably, the Ninth Circuit panel never challenged the administration’s ability to deny entry based on its reading of the statute. And the administration would be quite coherent in arguing, even apart from the statute, that the principles of natural right that underlie the existence of a national executive—principles such as government by consent—necessarily require a figure responsible to a national electorate to manage its external relations to vindicate those principles. Function once again follows form.
In United States v. Belmont (1937), Sutherland expressed for the Court’s majority the underlying logic for why the executive’s powers ought to supersede the renderings of state laws and state courts. Belmont concerned a dispute between the state of New York and the federal government over the laws understood to govern the recovery of money from a former Russian corporation. “In respect of our foreign relations generally, state lines disappear,” Sutherland reasoned. “When judicial authority is invoked . . . state constitutions, state laws, and state policies are irrelevant to the inquiry and decision.”
Just as the laws of New York could never supply the grounds for sorting out a claim to assets from a foreign entity, the states of Washington and Minnesota cannot coherently claim an injury from the Trump executive order. As Alexander Hamilton in Federalist 80 reasons, “the peace of the WHOLE ought not to be left at the disposal of a PART.” The priorities of the Governors of Washington and Minnesota who support their attorneys general filing suit are not relevant to the national electorate. As Arkes explains concerning the Belmont case, “An official who is not removable by a national electorate should not be in a position to make decisions that affect the safety or security of the entire country.”
Sutherland also addressed the question of non-citizens. In response to a due process claim in Belmont, he said the claim did not apply to them: “Private property shall not be taken without just compensation. But . . . our Constitution, laws, and policies have no extraterritorial operation, unless in respect of our own citizens.”
Compare that to the astounding reasoning of the Ninth Circuit panel, in which it drew upon the Supreme Court decision in Zadvydas v. Davis (2001):
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully.
In other words, the Ninth Circuit panel recast executive responsibility from maintaining the safety of citizens to maintaining the due process “rights” of non-citizens. The appeals court judges have assumed unto themselves the role of prime arbiter of the measures justifiable in protecting the people from external threats, a role unfitting for officeholders who are, by virtue of their life tenure, unaccountable to the national electorate.
The White House, which has allowed its executive order to trigger a national crisis, may dig in and appeal to the Supreme Court—but what it should do is simply issue a new executive order and be done with this headache. Its lack of competence in this matter has invited the lower court judges to respond to an executive they plainly do not trust with rulings that impede the executive from performing his constitutional duties, and have the logical conclusion of transferring unto themselves responsibility for the safety of the country. Justice Sutherland would likely have agreed that the order lacked deftness. However, he would have explained that the President has wide latitude in foreign affairs. He would have cut through the hubris and faulty reasoning of this moment.