The Ninth Circuit’s Astounding Reasoning

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 15, 2017 at 08:29:37 am

The Ninth Circuit is to jurisprudence what BuzzFeed or CNN is to journalism: an imposter. Call it Fake Law. Their decisions are result-oriented, intellectually dishonest, and arrogant. Stephen Reinhardt and his left-wing colleagues are the best argument against "judicial engagement" or any other theory that would give unelected judges greater authority over our lives. They are mendacious scofflaws who bring the entire judiciary into disrepute.

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Mark Pulliam
on February 15, 2017 at 08:45:20 am

I would agree with all except that the lack of competence of the executive caused this. With or without the competency of the executive, the over reach of the judiciary caused this.

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David Linton
on February 15, 2017 at 08:48:43 am
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David Linton
on February 15, 2017 at 10:56:53 am

Excellent essay, Garrett, and excellently argued. If only the four-horsemen were seated to ride again. Regrettably, Justice Kennedy's aptness to sway far left in his saddle, (balance is always a challenge a top a high horse), makes the outcome of a Supreme Court appeal of Washington v. Trump too difficult to predict, (or perhaps, all too predictable), to be prudent. In my view, it would preferable to have the matter settled at the Supreme Court level. However, I fear a 4-4 split might be the more harmful at this stage.

Prof. Arkes book on Sutherland vindicates in no small measure the much maligned Justice, and it demonstrates not only how solid Sutherland's jurisprudence was (well rooted in natural law), but it also dispels the enduring myths of his inconsistency. It should be a must read for any would-be students of the Supreme Court.

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Paul Binotto
on February 15, 2017 at 12:05:09 pm

"but what it should do is simply issue a new executive order and be done with this headache."

I am not certain that this would be the best remedy.

IF by issuing a new EO, it can be said that the peculiar reasonings AND assertions of both judicial power and State standing in these matters would be affirmed (by not contesting them), then we will have succeeded only in enabling this and further expansions of judicial power / arrogance.

No, the Executive must make a principled stand upon the issues involved here.

Who is charged with defense of our borders?
Who is charged with the conduct of foreign relations?
Under what constitutional delegation of power is the Judiciary permitted to encroach upon the Executive Power?

While it may be debatable as to the *extent* of Executive Power over immigration, the Legislative clearly has power, even if it's "delegation: to the Executive may be questioned. IT IS ABUNDANTLY clear that the Judiciary possess no such power or authority.

Further, as the essayist points out the Judiciary has once again ventured into the domain of the Legislative, if not that of a constitution maker, in asserting that our Constitution, and its guarantees, is to be applied on a worldwide basis.

THIS MUST be stopped.
Indeed, I would begin impeahment proceedings against the bow-tie wearing Black Robe Robart!

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on February 15, 2017 at 12:45:38 pm


further, it is not the Executive who has caused a "crisis" but the Black Robes who have steadily enhanced their own prerogatives at the (compliant) expense of the Legislative and the (at times, hesitant or grudging) expense of the Executive.

Should The Trumpster do as I suggest and fight this, we will no doubt be *entertained* with headlines such as "Trump PROVOKES Constitutional Crisis"

Nope, the Judiciary has long put us on a path to such a crisis.

I, for one, welcome it. Matters ought to be brought to a head. And this may be the issue to "provoke" it as it appears that there is both constitutional authorization / precedent and Statutory Authorization for the actions of the Executive AND none for the Black Robes.

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on February 15, 2017 at 12:54:08 pm

This is an interesting perspective on the adjudication processes of Washington vs. Trump as was the point of Greg Weiner's recent essay. But, do any of these examinations take us to the "core" of the "litigation?"

How does there come to be a "Washington vs. Trump" to be dealt with in "our" legal system?

Looking at each (and all) of the essays and comments, is it not apparent that the real issue here is the further perversion of the legal system as a means for the attainment of ends?

What are the discernable (probably "real") objectives of the litigants AND of those who would be adjudicators?

There are some clues in the questions at hearings; in particular those probing the "intent" of the executive in the actions taken, and the manner in which taken. At a minimum the objective of establishing a "regulated executive" seems discernable.

Perhaps a segment of the populace that has sought and secured the use of the legal system as a means to ends is more concentrated in some areas of the nation, and has acceded to a judiciary attuned to those purposes (economic, social and political). Still, the perversions run throughout the system.

Washington vs. Trump probably represents the use of the legal system for the attainment of particular ends. Some attention should be given to understanding those ends.

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R Richard Schweitzer
on February 15, 2017 at 13:07:16 pm

Mr. Gabe,

I agree with you, there is an important issue at stake here, but my concern is a 4-4 split decision by SCOTUS would/could have the same or worse result as not appealing the Ninth Circuit. The lower court decision would stand and the media spin would give the appearance of a Supreme Court vindication of the ruling; and likely only add fuel to the fire the Dems. intend for the torching of the Gorsuch nomination, ("Had McConnell not robbed Obama of the Garland nomination, the Supremes would have been able to protect immigrants, 5-4 - terrible, awful bigoted Republicans!").

And, to proceed with the hearing under Robart would likely only draw out the drama and still only result in (in my opinion) another pre-determined ruling that will set the stage for a court challenge on every future action the President takes.

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Paul Binotto
on February 15, 2017 at 13:35:23 pm

What is the *core* of the litigation?

Depends upon who answers the question.

What would the Judiciary say? "It is our role to *regulate* the Executive and we are Supreme."

What would the Executive say? "The power over foreign affairs rests with the Executive NOT the Judiciary"

Yet, as you point out there are subsidiary considerations, re: "intent"

I have argued, as have many others far more knowledgeable, that searching for Legislative intent is well nigh impossible. How much more difficult is it to "divine" a "candidates" intent. Yet, the Black Robes appear to be willing to do so and have presume to possess such a rare competence.

This was one of the reasons that I suggested that The Trumpster must fight this. Is the Executive to let this judicial presumption stand as a precedent? Are we now then to expect that the venerated Black Robes are to be empowered to probe into the motives of every single Legislative and Executive action / policy? with such a (arrogated) grant of power, the absolutism of the Judiciary will be finally confirmed.

additionally, it appears that the Black Robes, and their Democrat party enablers, aim to further expand the application of the US Constitution. It's protections are now to be afforded to all who happen to reside on this planet. All persons now means precisely that "ALL PERSONS" This too is an end, albeit an intermediate end and one that would further foster Democrat Party "solidarity" with the oppressed (voters, perchance?) of the world.

No, this must NOT STAND! This must be contested and not one single inch yielded, not one further expansion of *judicial* (such as it nowadays is) authority recognized.

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on February 15, 2017 at 14:38:12 pm

Well, how would you like the following "fight back:"

An Executive Memo stating that any official or employee of the U S acting in accord with the EO will be granted an immediate and full pardon, with restitution where appropriate, in the event of being subjected to any charges by reason of the order of that particular District Court.

Further all U S Marshalls (appointed by the President) are under the jurisdiction of the DOJ. They too can be invoked.

"The Court issued this so-call Rule, let them try to enforce it!"

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R Richard Schweitzer
on February 15, 2017 at 14:51:54 pm


You left out the "Plaintiffs" (and their spokesmen), what would they say (1) for the record; (2) if they spoke the truth?

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R Richard Schweitzer
on February 15, 2017 at 15:13:01 pm

"All persons now means precisely that “ALL PERSONS" - ah, then, Mr. Gabe, their argument will at last have come full circle and all that's left is for the stool to be kicked-out from under their feet, so they may finally hang themselves on their abortion argument.

"So, Mr. State Attorney, where do we draw the line; would you have us detain or turn back a pregnant non-citizen or immigrant mother for attempting to smuggle into the U.S., an unborn, non-constitutionally protected class of persons?" "Oh, so you say, 'No', because a fetus is not a person. So at what point does it become a fully protected class of person?" "At birth you say? Tell us, what makes this person so different at birth, than say, two minutes earlier, when it was still inside its mother's body?''

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Paul Binotto
on February 15, 2017 at 15:40:17 pm

Fight back:

1) eliminate Court jurisdiction in all matters of immigration. Congress does have the power to do so.
2) Court issued rule, not only will I not enforce it but we will impeach any Judicial officer or Executive Officer attempting to enforce it. Prohibit the use of any Federal Funds required for compliance with the Judges order.
3) don;t know the terms for this but: Are not courts supposed to rule on the specific case and controversy at issue before the court. Eliminate these over-broad *national injunctions*.
40 Suspend all payments to any state or political subdivision that complies with the judges order.

And I ain;t even warmed up yet.

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on February 15, 2017 at 15:53:15 pm

The plaintiffs being the State OR the immigrants or the Soros backed groups?

State: Were their *ends* simply to regain some State autonomy vis a vis the Federal government, I could go along with this. However, State autonomy, 9th and 10th Amendment rights are not their aim. Rather, it would appear that it is not a valid State aim they are advancing but rather one that seeks to further impose a peculiar notion of a proper and good society - in short the typical Progressive ideology / agenda.

For the record, they would appear to claim that their end is to avoid harm to their own institutions, colleges, etc who will suffer greatly were these institutions to be deprived of the presence of non-citizen student component. Also, their claim is that many of the States businesses will suffer injury were they not able to continue to *import* (lower wage) foreign workers who possess unique skills / attributes and thus the State may suffer decreased tax revenue, etc.

For the Truth: Well we need their votes; we need to maintain the posture of the caring Party; we need to continue to justify continued transfer payments from the Feds as each additional student entitles us to greater funding; and also, we need to foster "diversity" and multiculturalism as we white folks (except us in the government and academy) have really screwed the pooch . For a general disquisition on how we white folks in /america have screwed the pooch refer to the writings of, well, nobody.really.

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on February 16, 2017 at 09:20:42 am

[…] “travel ban” deflect attention from legitimate concerns about the Ninth Circuit’s complete disregard for the president’s statutory authority when it comes to certain immigration restrictions. […]

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Fighting the Shadows - Telzilla
on February 16, 2017 at 09:27:51 am

[…] ban” deflect attention from legitimate concerns about the Ninth Circuit’s complete disregard for the president’s statutory authority when it comes to certain immigration restrictions. […]

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Fighting the Shadows - Big Sky Headlines
on February 17, 2017 at 17:50:40 pm

[…] his piece, “The Ninth Circuit’s Astounding Reasoning,” Garrett Snedeker discusses the complicated state of affairs as the Ninth Circuit has challenged the […]

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Image of “The Ninth Circuit’s Astounding Reasoning” –Garrett Snedeker in the Library of Law and Liberty | James Wilson Institute
“The Ninth Circuit’s Astounding Reasoning” –Garrett Snedeker in the Library of Law and Liberty | James Wilson Institute
on February 17, 2017 at 19:04:10 pm

It's chilling to read read comments by supposed enthusiasts of either "law," or "liberty," or both, calling for government by a lawless executive, and rhetorically assaulting the judiciary of the United States.

Before long, you will feel shame for what you are saying, and I hope you're never allowed to forget it.

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on February 17, 2017 at 21:51:54 pm

In my view, Sir or Madam, the judiciary has brought every shame down upon themselves whether it be Justice Ginsburg's foray into the presidential campaign or the over-reaching, poorly and transparently reasoned Ninth Circuit ruling, executed in such a manner apparently lacking in sufficient courage, gravity, or conviction to merit a signature.

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Paul Binotto
on February 18, 2017 at 12:54:57 pm

Oh, not to worry, I am certain that those that are *chilled* by frank and robust discussion of our contemporary judicial situation may insulate themselves in the copiously available warmth of Leftists platitudes. One may find it to be quite an effective shield against the *chilling* light of reason.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.