Further Considering the Restrained Executive Order

By Dan Cadman, February 21, 2017

Buckets of printer's ink have been spilled and thousands of megabytes are floating around cyberspace regarding the decisions of the district and circuit courts imposing a "temporary" restraining order (with no end date) that stops the Trump administration from carrying out the visa suspension executive order.

Two of the best thought pieces written, in my opinion, have been penned by fellows here at the Center — John Miano and David Seminara, who speak with hands-on experience unlike many of the bloviaters out there in cyberspace.

With all the figurative and literal chatter, and in light of the Trump administration's announced intent to rescind and replace the executive order, I had resolved not to say more about the matter, but my resolve has weakened. I have just a few more things to observe.

I've already expressed my sense that it was a pointless exercise for the courts to ask for evidence that nationals from the (six/seven?) countries specified in the EO constitute a risk to the public. But I also can't help feeling a sense of dismay that the Department of Justice (DOJ) lawyers representing the administration in court couldn't identify any nationals from those countries who had engaged in terrorism. Their weak rejoinder that they weren't familiar with cases because they were from the Civil Division (as opposed to the Criminal Division, which prosecutes national security cases) seems to me to be a thin gruel. Surely they could have anticipated the question, however inappropriate it may be in the real world; my colleague Jessica Vaughan certainly had no trouble identifying more than 70 such individuals, and that figure errs on the low side out of caution. How is it that our federal government can't put their fingers on that data in an instant's time, given all that has happened since 9/11?

Having said that, though, I find myself wondering why this preoccupation with concrete proof didn't cut in both directions. How is it that the State of Washington was able to justify legal standing in the case based on a vague and insubstantial argument that the suspension of visas or entry of nationals from those countries would deprive state universities of foreign students and scholars? It has always been my understanding that standing in a case was supposed to be based on actual, or at least imminent, damage. Why did the judges not demand proof in the form of lists for alien students and scholars denied entry to the United States to attend those institution?

Frankly I doubt that there have been very many scholars at all in the Washington state university system from the identified countries. Of the seven, we are talking about four failed states with collapsed educational institutions (Libya, Syria, Somalia, Yemen). A fifth (Iraq) is near collapse and in the midst of an existential battle with the government pinned between malevolent ISIS on one side, and virulent Shia militias on the others. A sixth (Sudan) has been ruled by strong-man regimes with a pro-Islamic bent (the kind that often shuns "western" style learning) and has been embroiled in two decades-long civil wars. The seventh is the Islamic Republic of Iran, a state sponsor of terror that does in fact encourage western learning, at least of the technical/scientific kind, but that is because the mullah-controlled regime is keenly interested in the weapons of war that rely on such learning, and accepting students or scholars from this country should always be done with caution since they are subject to domination and control by Iran's military and intelligence organs.

So why exactly did Judge Robart in the district court, or the three-judge panel of the Ninth Circuit not ask exactly how many such students could be identified as having attended those institutions within the past year or two, or how many had been denied? The number would almost certainly have had to be infinitessimally small, if any at all.

Then there is the important fact that institutions of higher learning are only authorized to accept foreign students and scholars on sufferance of the federal government. No institution of higher learning, public or private, has an intrinsic and inviolable right to the presence of foreign students or exchange scholars from any country on its campus or in its research programs (many of which, by the way, are federally funded). A small program called the Student-Exchange Visitor Program (SEVP), within Immigration and Customs Enforcement ICE), which is in turn a Department of Homeland Security (DHS) agency, exercises the power delegated by the DHS secretary to grant, deny, or withdraw authority to institutions of learning to accept foreign students. Under such circumstances how can an institution argue that the executive order deprives it of something that is not a foundational right, but a privilege that can be rescinded for cause?

In the case of Washington, although most of the state universities have not declared themselves as sanctuary campuses (apparently owing primarily to a fear of losing funding), they are sailing pretty close to the wind even in the absence of that official designation. See, for instance, here, here, and here.

With the happy omniscience granted by hindsight, it seems to me that in complex matters such as immigration, which has become such a source of contention, timing is everything. Had the administration promulgated the EO after its supreme court nominee was confirmed and en route to the bench, they might have felt more comfortable with requesting a full en banc hearing at the Ninth Circuit Court of Appeals, and then onward if necessary. We must hope that the confirmation hearing on Judge Gorsuch proceeds through the Senate with speed then because it seems obvious to me that many of the administration's agenda centerpieces are going to be subject to inordinate amounts of litigation by its opponents.

It also seems to me that the Ninth Circuit, for many years now, has allowed its activist thinking to percolate throughout the many subjects that come before them, not least immigration, often with bizarre results (here, here, and here). When their cases are appealed to the Supreme Court, they are overturned more often than not. Unfortunately, it is time-consuming and expensive to appeal to the Supreme Court, and there can be strategic reasons not to do so. The Ninth Circuit judges are smart enough to know this, and so they sit in their lifetime sinecures spinning new legal theories and statutory nullifications out of whole cloth. When they do, their rules hold for everyone within its jurisdictional boundaries, which are dismayingly broad, consisting of nine states and our Pacific island territories.

Perhaps it is time to whittle that jurisdiction down. Congress has the power to do so through legislation. Why not split the Ninth Circuit in half or, better yet, into three? Leave the Ninth Circuit in control of California — after all, it wants to secede from the union; if it does, then the Ninth Circuit can fight it out with the California Supreme Court to see who becomes top juridical dog in the new nation — assign the remaining states in the "lower 48" to a new Twelfth Circuit (Tenth and Eleventh already exist), and Alaska, Hawaii, and the Pacific territories become the new Thirteenth. I am only partly serious here; but on the other hand, I'm only partly kidding. Something needs to be done. The Ninth Circuit is out of control.

Finally, it seems to me that the regulations governing approval for institutions of learning need to be rewritten to spell out unambiguously that campuses that either by declaration or conduct show themselves hostile to cooperating with the very same authorities who grant them the privilege of accepting foreign students should be subject not just to loss of funds, but denial or loss of that privilege. I realize that the new administration has issued a moratorium on promulgating new rules for the moment, while it reviews those that exist and are pending. But in the fullness of time, the regulations governing approval, denial, and revocation of the Form I-17 (which is the document filed by educational institutions to obtain permission to enroll foreign students) must make clear that scofflaw institutions will be denied that privilege.