SAN FRANCISCO (Courthouse News) – 3/16/17 – A Ninth Circuit judge on Wednesday called his colleagues’ decision to uphold the temporary restraining order on President Donald Trump’s travel ban “wrong,” while simultaneously rebuking the president for his attacks on the judiciary.
Circuit Judge Jay Bybee’s words came in the form of a dissent to a refusal to vacate the original panel’s decision not to block the travel ban as moot, since Trump voluntarily dropped his challenge in favor of revising the ban.
Neither the Trump administration nor Washington state – which filed the lawsuit challenging the travel ban – asked to vacate the panel’s decision. A judge of the court then called for a vote for en banc reconsideration, but didn’t receive a majority of the votes of the 29 active judges.
Accordingly, and citing the precedent of 1994’s U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, the unsigned order said “the ‘extraordinary remedy of vacatur’ is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party,” and kept the order halting the travel ban in place.
But in a 25-page dissent, Bybee strongly objected to leaving the order as precedent because he believes the court had no business wading into presidential affairs in the first place.
“Whatever we, as individuals, may feel about the president or the executive order, the president’s decision was well within the powers of the presidency, and the wisdom of the policy choices made by the president is not a matter for our consideration,” Bybee wrote.
Bybee, widely considered one of the more conservative judges at the Ninth Circuit, was appointed by President George W. Bush and was joined in the dissent by four other Ninth Circuit judges — Alex Kozinski, Consuelo Callahan, Sandra Ikuta and Carlos Bea.
The original ruling upholding the restraint of the travel ban is at loggerheads with other cases in both the circuit and the Supreme Court relating to similar subject material that have found courts possess extremely limited review of presidential decisions related to the nexus of immigration and national security, Bybee said in the dissent. He said refusing to vacate the decision preserves it as precedent and will cause legal confusion.
However, Bybee distanced himself from support of the travel ban.
“I have written this dissent to defend an important constitutional principle – that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review – and not to defend the administration’s policy,” he wrote.
Specifically, Bybee noted Congress has delegated broad powers to the president to “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.”
Bybee further cited a Supreme Court case, 1952’s Kleindienst v. Mandel, which held that the attorney general had the right to refuse an individual’s entry into the United States. The case was brought by supporters of Belgian journalist and Marxist theoretician Ernest Mandel, who sought to compel Attorney General Richard Kleindienst to issue the divisive figure a temporary nonimmigration visa. Mandel was scheduled to give talks at Columbia, Princeton and Stanford, among other locations, and espousing Marxist principles in the 1950s was – to some segments of the United States government – tantamount to treason.
The Supreme Court held Kleindienst was well within his rights to deny the visa.
In her Feb. 9 opinion, Circuit Judge Michelle Friedland mentioned the Mandel case, but held that in that instance it applied only to one individual. The travel ban represented the “president’s promulgation of sweeping immigration policy,” she wrote.
This more general approach to immigration policy was subject to judicial review, the panel stated.
“The promulgation of broad policy is precisely what we expect the political branches to do; presidents rarely, if ever, trouble themselves with decisions to admit or exclude individual visa-seekers.”
He further said the panel’s disregard of Mandel’s precedent “stands the separation of powers on its head” and will set up a natural contradiction between Mandel and the recent Washington v. Trump decision for future court deliberations.
Despite his strident disagreement with the conclusion of the panel, though, Bybee defended his colleagues from the attacks of Trump, who cast aspersions on the Ninth Circuit and called them “so-called judges” following the legal setback of the travel ban.
“The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse – particularly when they came from the parties,” Bybee wrote in a clear reference to the antics of the president without mentioning him by name. “It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy.”
Trump signed the first travel ban on Jan 27. It temporarily banned entry to citizens of Iraq, Iran, Somalia, Yemen, Libya and Sudan for 90 days, and suspended entry to refugees from war-torn Syria indefinitely.
Issued on a Friday evening, the order quickly convulsed the nation’s airports and sparked nationwide protests at airports and other locations.
Washington state sued in federal court, saying the travel ban represented a constitutional violation of the Equal Protection Clause and was motivated by religious discrimination against Muslims.
U.S. District Judge James Robart of the Western District of Washington issued a temporary restraining order, allowing many who were held in limbo by the ban to return to their families.
The Trump administration immediately appealed Robart’s decision to the Ninth Circuit, which refused to reinstate the travel ban.
A judge on the Ninth Circuit asked for an en banc rehearing of the case, meaning a fuller 11-person bench would hear the case, rather than the three-person panel. Before that happened, however, the Justice Department withdrew its appeal when Trump decided to revise the travel ban.
The court’s decision not to vacate its order once Trump dropped the appeal prompted the dissent from Bybee, who characterized it as a chance “to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.”
Trump and some of his allies in conservative media have attributed his legal defeat to the Ninth Circuit’s liberal reputation. But those criticisms have only drawn the ire of members of the judiciary across the political spectrum.
“Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles,” Bybee wrote. “The courts of law must be more than that, or we are not governed by law at all.”
Prior to Bybee’s stint with the Ninth Circuit, he served as Bush’s assistant attorney general for the Office of Legal Counsel in the Justice Department. While there, he signed the controversial “Torture Memos” in 2002 – authorizing so-called “enhanced interrogation techniques” that resulted in the torture of detainees at Guantanamo Bay and Abu Ghraib.
Of Bybee’s fellow dissenters, three were appointed by President George W. Bush as he was: Bea, Ikuta and Callahan. Kozinski, a President Ronald Reagan appointee, was at the time of his appointment in 1985 the youngest federal appeals court judge at the age of 35.