Ninth Circuit Ignores Statutes and Precedent

By John Miano on February 13, 2017

For those of you returning from UFO abductions, President Trump issued an executive order that included a provision that temporarily banned the admission of aliens from seven countries lacking functional governments or, in the case of Iran, is a state sponsor of terrorism. This sparked numerous legal challenges. American law is in such chaos that, if you sue enough times, you can get any outcome.

Sure enough, the Western District of Washington granted an injunction blocking parts of Trump's executive order and the Ninth Circuit refused to stay that decision.

The Ninth Circuit's opinion defies any kind of legal analysis, but I will try to briefly explain the law in regard to presidential power and Congress's power to exclude aliens as it existed before Trump.

The Supreme Court's opinion in Youngstown Sheet & Tube Co. v. Sawyer, has been the benchmark for determining whether a presidential action is within his authority, 343 U.S. 579 (1952). This case arose during the Korean War in a tale that sounds like the Stalinist Soviet Union. President Truman had established wage and price controls. The government sought to approve a wage increase for the steel workers' union while the steel industry asserted it could not afford it unless the government approved increases in steel prices. The steel workers went on strike. Truman then seized the steel mills in order to continue production. The owners of the mills challenged the seizure for being in excess of presidential authority. The Supreme Court ultimately held that this seizure was not within the president's power.

Justice Jackson's concurrence in Youngstown set the model that has subsequently been used to determine whether an action is within a president's authority. Justice Jackson divided presidential acts into three groups:

  1. 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.
  2. When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference, or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
  3. When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Next one has to determine which of these categories President Trump's action falls under. This is simple because we have a statute, codified at 8 U.S.C. §1182(f) that provides:

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.

Congress explicitly granted the president the power to exclude any alien from the country. That puts the executive order in Justice Jackson's first category. Justice Jackson directs us:

If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.

The question of whether Trump's action is lawful becomes does Congress have the power to ban any alien from the country? If such a ban is unconstitutional, Congress cannot delegate that power to the president. If such a ban is constitutional, Congress can delegate that authority to the president.

The Supreme Court has repeatedly addressed the question at issue here and it has held Congress has such power:

Judicial power over immigration and naturalization is extremely limited. "Our cases 'have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.'"
(Miller v. Albright, 523 U.S. 420, 455–56 (1998))


Our cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occasion to note that " the power over aliens is of a political character and therefore subject only to narrow judicial review." And we observed recently that in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens." (Fiallo v. Bell, 430 U.S. 787, 792 (1977))

Even the Ninth Circuit has repeatedly held the same in the pre-Trump age:

The Supreme Court has "long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." (Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016))


The right to exclude or to expel all aliens or any class of aliens, absolutely or upon certain conditions, is an inherent and inalienable right which is essential to the safety, independence and welfare of every sovereign nation. Pena-Cabanillas v. United States, 394 F.2d 785, 788 (9th Cir. 1968))

And Kwai Chiu Yuen v. Immigration and Naturalization Serv., 406 F.2d 499, 501 (9th Cir. 1969) explicitly holds that the right to exclude or to expel aliens, or any class of aliens, is vested in the national government and Congress.

This is how the law existed before the Ninth Circuit took up the case.

If the judges on the Ninth Circuit had a modicum of competence, they would have provided an analysis that applied the facts of this case to the existing precedent. They would either show that President Trump's executive order was outside the scope authorized by 8 U.S.C. § 1182(f) or that it was unconstitutional for Congress to grant that power to the president. Because of the extensive body of precedent holding Congress has such power, the Ninth Circuit would need to show some distinction between the facts of this case and previous cases.

So how does the Ninth Circuit address this issue? The Ninth Circuit simply ignores the statutes and precedent. The Ninth Circuit's opinion makes no mention whatsoever of 8 U.S.C. § 1182(f). The Ninth Circuit's opinion makes no mention of any precedent holding the Congress has the power to exclude aliens from the country. Instead it relies on opinions describing rights of those already admitted into the country to create a right of aliens to enter the country.

In contrast, the District of Massachusetts opinion denying an extension of its temporary restraining order repeatedly describes 8 U.S.C. § 1182(f).