In the State of Washington vs President Donald J. Trump, the Chief Executive's power to legislate via executive order has been successfully challenged through two levels of federal court proceedings. The Ninth Circuit Court of Appeals upheld a federal district court judge's temporary stay of the executive order.

The President, vowing to take the dispute to the SCOTUS, tweeted: "SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE." Two Democratic appointees and one Republican appointee made-up the Ninth Circuit panel that decided the case.

The at-issue executive order, titled Protecting the Nation for Foreign Terrorist Entry in the United States, imposed a 90-day ban on individuals entering the country from 7 Muslim-majority countries. The appeals court based its decision on the federal government's failure to show a likelihood of success on the merits of the case, as well as a failure to demonstrate how the country would be irreparably harmed by a stay of the new executive immigration policy.

Citing the 9/11 terrorist attacks, the government's argument focused on deteriorating conditions in the target countries due to war, strife and civil unrest, claiming that foreign-born malfeasors have been implicated in subsequent terrorist plans. Due to the speed with which these claims have been put through the courts, the Ninth Circuit admitted it had very little facts on which to make their ruling.

Ultimately, the Ninth Circuit's 29-page decision concluded that the executive order did not provide what the 5th Amendment's Due Process clause requires. The due process elements found lacking are a hearing and notice that the affected individual's right to travel was suspended. The legal analysis of the Ninth Circuit, however, fails to distinguish green-card holders [a group that does have a set of Due Process rights] from visa holders, visa applicants, and refugees [groups that have lessened rights to Due Process].

One of the chief political issues addressed by the appellate court is the executive order's effect on the refugee program, particularly from Syria. Washington State alleged, from a legal perspective, that it was suffering ongoing economic harm due to the detention of university professors and students, key tech industry executives, and other important business people; all foreigners.

Curiously, the decision does not even mention the applicable federal law that grants POTUS broad powers, on national security grounds, to regulate who gets to come into the United States:

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.

If the panel's decision is the subject of an en banc review [i.e. further review by the entire bench of the Ninth Circuit] or by the SCOTUS, this failure to properly analyze the law could result in a reversal.

Also, rather than bringing the case at the state level, the constitutional "standing" requirement calls for a particularized injury. Thus, bringing the cases of individuals actually affected by the executive order travel restrictions may have been the better approach. This approach was scrapped in order to get the suits filed instantaneously.

Today, U.S. Department of Justice lawyers are preparing a petition for writ of certiorari to the United States Supreme Court. What normally takes years, will unfold in a matter of weeks, if the SCOTUS agrees to take the case.

If the petition for cert is granted, the Court may hear the case without its 9th justice; presumably Judge Gorsuch, if he is confirmed by the Senate. If the petition is denied, then the Ninth Circuit's decision becomes the law of the land.

This case is an important illustration of the checks and balances set out in the United States Constitution. Executive power, which ebbs and flows from decade to decade, has its limits.

Here at this blog, while we recognize the state's strong interest in the robust screening of foreign applicants for entry into the United States, there certainly is a downside to unchecked executive power. When the Chief Executive deigns to rule via executive order, and the orders that overreach are not immediately challenged, either by Congress or in the federal courts, then one executive order becomes a dozen, then a hundred. Before we know it, our civil liberties are eroded, not just those of foreigners.

Federal lawsuits, on the other hand, especially those that challenge the scope of the executive's powers, must properly articulate an injury-in-fact; not just attenuated claims of injury absorbed by a few states.

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