Tag Archives: David Rivkin

Investigate McCabe’s 25th Amendment Tale

By David B. Rivkin Jr. and Lee A. Casey

24 February 2019 in the Wall Street Journal

Did law-enforcement officials plot to remove President Trump from office? Andrew McCabe, former deputy director of the Federal Bureau of Investigation, suggests they might have. In a recent interview, Mr. McCabe said that in May 2017 Deputy Attorney General Rod Rosenstein “raised the issue” of using the 25th Amendment to remove Mr. Trump from office “and discussed it with me in the context of thinking about how many other cabinet officials might support such an effort.” According to Mr. McCabe, Mr. Rosenstein was “counting votes or possible votes.”

Exactly what happened is unclear. A statement from Mr. Rosenstein’s office called Mr. McCabe’s account “inaccurate and factually incorrect” and asserted: “There is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment.” But this is a potentially serious matter, and should be fully investigated.

The 25th Amendment was ratified in 1967, primarily to provide for the appointment of a new vice president when that office becomes vacant, as it did when Lyndon B. Johnson acceded after John F. Kennedy’s 1963 assassination. It also contains a section creating a process whereby a president who is “unable to discharge the powers and duties of his office” can temporarily cede authority to the vice president, and one through which the vice president and a majority of “principal officers”—cabinet members—can sideline a president who is disabled but won’t acknowledge it.

It is that last provision that supposedly excited Mr. Rosenstein’s interest. Mr. McCabe said the idea came in a discussion of “why the president had insisted on firing the director [Mr. Comey] and whether or not he was thinking about the Russia investigation.” To prevent interference with that probe, Mr. McCabe said, he opened new counterintelligence and criminal investigations of the president in May 2017, both of which were shortly subsumed into the probe led by special counsel Robert Mueller, whom Mr. Rosenstein appointed. 

Almost two years later, there’s no evidence Mr. Trump colluded with the Russians. Yet even if he had, it could not justify his removal under the 25th Amendment. The amendment can be lawfully invoked only if the president, by reason of some physical or mental disorder, literally cannot do his job. The examples its framers offered were the disability of President James A. Garfield during the 80 days he lingered in feverish agony after the gunshot wound that finally killed him; the period during which President Woodrow Wilson was unable to perform his duties after suffering a stroke; and President Dwight D. Eisenhower’s similar (although shorter) disabilities after suffering a heart attack and a stroke while in office.

Neither Mr. Trump’s unorthodox political style (of which the electorate was very much aware when it chose him in 2016), the disorder and divisions within his administration, nor even any criminal offense he might have committed could justify invoking the 25th Amendment. If a president is corrupt or criminal, or even a Russian spy, the Constitution prescribes a remedy: impeachment by Congress, not his ouster by unelected officials. Messrs. Rosenstein and McCabe surely knew this, and that is what makes the conversations Mr. McCabe describes serious enough to merit the attention of law enforcement.

Under federal law, it is a crime when “two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose.” In Haas v. Henkel (1910), the Supreme Court construed this language to include “any conspiracy to impair, obstruct or defeat the lawful function of any department of the government” using means that are not necessarily illegal themselves but involve trickery, deceit or dishonesty. That surely includes the purposeful impairment of a duly elected president through a pretextual resort to the 25th Amendment.

This law has been vigorously enforced. Mr. Mueller—presumably with the approval of Mr. Rosenstein, who is overseeing his work—last year obtained indictments against various Russian entities and persons for defrauding the U.S. by interfering in the 2016 presidential election using dishonest means.

An investigation wouldn’t necessarily lead to a prosecution. For one thing, investigators might conclude that Messrs. McCabe and Rosenstein were merely engaged in idle chatter. In this context, conspiracy requires both an agreement to defeat lawful government functions by dishonest means and an overt act in furtherance of that end. Canvassing cabinet members about their willingness to vote for the president’s removal—if that is what happened—would likely qualify. (Mr. McCabe has said Mr. Rosenstein believed two cabinet members would support the move, although he described this as “simply Rod thinking off the top of his head” and doesn’t think Mr. Rosenstein “actually sought support or talked to those people about it.”) Planning to record conversations with the president through an FBI wire, if substantiated, would also clear the bar for conspiracy.

Another challenge is that the chief witness would be Mr. McCabe, who has a credibility problem. He was fired from the FBI after the Justice Department inspector general concluded that he “lacked candor” in statements to investigators about his role in the bureau’s probe of Hillary Clinton. Still, now that his allegations have been publicly aired, they merit a prompt and vigorous investigation by the Justice Department. It would be bad enough if a conspiracy by government officials against American democracy went undiscovered, vastly worse if such a conspiracy is revealed and goes uninvestigated and unpunished.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/investigate-mccabes-25th-amendment-tale-11551045250

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Stop the Impeachment Fishing Expedition

By David B. Rivkin Jr. and Elizabeth Price Foley

Feb. 14, 2019, in the Wall Street Journal

As William Barr begins his term as attorney general, House Democrats are aiming a “subpoena cannon” at President Trump, hoping to disable his presidency with investigations and possibly gather evidence to impeach him. Mr. Trump fired back in his State of the Union address: “If there is going to be peace and legislation, there cannot be war and investigation.” To protect the presidency and separation of powers, Mr. Barr should be prepared to seek a stay of all congressional investigations of Mr. Trump’s prepresidential conduct.

The president is not one among many, as are legislators and judges. Crippling his ability to function upsets the constitutional balance of power. For this reason, the Justice Department’s Office of Legal Counsel has repeatedly concluded that a sitting president may not be indicted or prosecuted. The same logic should apply to congressional investigations.

Congress is targeting Mr. Trump’s actions before becoming president because there are well-established constitutional limits, grounded in separation-of-powers doctrine, on its ability to investigate his official conduct. In U.S. v. Nixon (1974), the Supreme Court recognized a constitutionally based, although not unlimited, privilege of confidentiality to ensure “effective discharge of a President’s powers.” In Nixon v. Fitzgerald (1982), the justices held that presidents and ex-presidents have absolute immunity against civil liability for official presidential acts.

Executive immunity for prepresidential activity is less clear. In Clinton v. Jones (1997), which arose out of Paula Jones’s accusation that Bill Clinton sexually harassed her while he was governor of Arkansas, the justices reasoned that Ms. Jones’s lawsuit could proceed because the burden on the presidency objectively appeared light. Specifically, because only three sitting presidents had been sued for prepresidential acts, the justices thought it “unlikely that a deluge of such litigation will ever engulf the presidency.”

The court did, however, consider the question of whether civil litigation “could conceivably hamper the President in conducting the duties of his office.” It answered: “If and when that should occur, the court’s discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Unfortunately, the scenario the court called “unlikely” in 1997 now exists. Like Mr. Clinton, Mr. Trump faces an investigation by a zealous prosecutor with unlimited resources inquiring, among other things, into prepresidential activities. In addition, Mr. Trump is subject to a deluge of lawsuits and investigations, including by state attorneys general, involving his conduct before entering politics. The House Intelligence Committee has announced a wide-ranging investigation of two decades’ worth of Mr. Trump’s business dealings. The Ways and Means Committee plans to probe many years of Mr. Trump’s tax returns. By contrast, the 1995 resolution establishing the Senate Whitewater Committee targeted specific areas of possible improper conduct by the White House and federal banking regulators.

Congress has no authority to investigate or prosecute crimes; these responsibilities belong to the executive branch. It has no power to conduct fishing expeditions, and its investigatory authority is supposed to be in the service of legislation. As the Supreme Court warned in Watkins v. U.S. (1954), investigations unrelated to legislative business are an abuse of power that “can lead to ruthless exposure of private lives.” When congressional investigations seek ruthless exposure of a sitting president’s private life, the harm is not only to persons but to institutions.

Nor is investigating Mr. Trump’s prepresidential activities a legitimate exercise of the House’s impeachment power. The Framers viewed impeachment as a remedy for serious violations of public trust committed while in office. As Gouverneur Morris told the constitutional convention, impeachment would punish the president “not as a man, but as an officer, and punished only by degradation from his office.” Alexander Hamilton likewise observed in Federalist No. 65 that impeachment involves “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

The House Judiciary Committee has embraced this interpretation several times. In 1872, it refused to impeach Vice President Schuyler Colfax for taking—while he was in Congress—discounted shares of the Union Pacific Railroad as part of the Credit Mobilier scandal. The Judiciary Committee concluded in a report that impeachment “should only be applied to high crimes and misdemeanors committed while in office.” The committee’s Democrats took a similar tack in 1998, objecting to the committee’s resolution to impeach Mr. Clinton on the ground that perjury and obstruction of justice arising from the Jones case did not “amount to the abuse of official power which is an historically rooted prerequisite for impeaching a President.”

While the full House impeached Mr. Clinton for perjury before a grand jury, it voted down an article of impeachment for perjury in Ms. Jones’s civil case. Earlier efforts to impeach presidents clearly involved official acts: Andrew Johnson was impeached after violating the Tenure of Office Act. The effort to impeach Nixon began only after tapes implicating him in the Watergate burglary were obtained.

“Impeachment is like a wall around the fort of the separation of powers,” the Judiciary Committee Democrats wrote in 1998. “The crack we put in the wall today becomes the fissure tomorrow, which ultimately destroys the wall entirely.” If Congress can use its investigatory power to fish for evidence of impeachable acts, presidents will become politically accountable to Congress, not the people. Impeachment proceedings must be designated as such from the get-go, not obfuscated as amorphous “investigations.”

To protect the separation of powers, the president should defy all demands for information about his prepresidential activities. If Congress or private litigants seek to enforce these demands, the Justice Department should move to stay these proceedings while Mr. Trump is in office. If Democrats want to remove Mr. Trump from office, there are two legitimate ways to do so: By defeating him at the polls in 2020 or through properly conducted impeachment proceedings based on evidence of “high Crimes and Misdemeanors” committed while in office.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: www.wsj.com/articles/stop-the-impeachment-fishing-expedition-11550188732

Another IRS free-speech scandal

By David B. Rivkin and Randall John Meyer

November 23, 2018, in the Wall Street Journal

The Internal Revenue Service infamously targeted dissenters during President Obama’s re-election campaign. Now the IRS is at it again. Earlier this year it issued a rule suppressing huge swaths of First Amendment protected speech. The regulation appears designed to hamper the marijuana industry, which is still illegal under federal law although many states have enacted decriminalization measures. But it goes far beyond that.

The innocuously named Revenue Procedure 2018-5 contains a well-hidden provision enabling the Service to withhold tax-exempt status from organizations seeking to improve “business conditions . . . relating to an activity involving controlled substances (within the meaning of Schedule I and II of the Controlled Substances Act) which is prohibited by federal law.” That means that to obtain tax-exempt status under any provision of the Internal Revenue Code’s Section 501—whether as a charity, social-welfare advocacy group or other type of nonprofit—an organization may not advocate for altering the legal regime applicable to any Schedule I or II substance.

Marijuana is a Schedule I substance, meaning the Food and Drug Administration has found it has “no currently accepted medical use and a high potential for abuse.” Schedule II drugs include such widely prescribed medications as Adderall, Vyvanse, codeine and oxycodone. The IRS can deny tax-exempt status to any organization that seeks to improve the “business conditions” of a currently prohibited activity involving these medications. That could include simply advocating for a change in the law or regulation forbidding the possession, sale or use of marijuana or other Schedule I substances. It would also encompass advocacy for relaxing the regulatory regime currently governing the production, distribution or prescription of Schedule II medications.

The rule does not apply to all speech dealing with the listed substances, only that involving an “improvement” in “business conditions,” such as legalization or deregulation. Efforts to maintain restrictions or impose additional ones are fine by the IRS. This is constitutionally pernicious viewpoint discrimination. As the Supreme Court stated in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”

Defenders of the IRS may argue that tax-exempt status is a privilege, not a right. But the court has held that the government cannot require recipients of governmental largess to relinquish constitutional rights in return—particularly free-speech rights.

The IRS may point to Bob Jones University v. U.S. (1983), in which the high court upheld the denial of tax-exempt status to a private school with racially discriminatory practices that were “contrary to settled public policy.” But public policy on drugs, especially marijuana, is far from settled. A majority of states have enacted legalization measures contrary to federal law; Michigan, Missouri and Utah all did so this month. And Congress has already defunded Justice Department prosecutions of medical cannabis businesses that are legal under state law.

More important, Bob Jones involved not advocacy but action—discriminatory policies that constrained the university’s students. The case would likely have come out differently if the schools complied with public policy while arguing that it should change.

Although no constitutional right is absolute, governmental policies that burden First Amendment rights are strictly scrutinized by the courts and will be upheld only if based upon a compelling governmental interest.

The framers of the Bill of Rights had experienced the full brunt of British antisedition laws, which were used to punish political advocacy. They were determined that this never happen again. Banning or even burdening the freedom to advocate for changing governmental policies, no matter how unpopular or odious the message may be, violates not only the First Amendment but the idea of government by the people. Impeding such advocacy cannot have any legitimate governmental purpose, much less a compelling one.

Accordingly, while government has been able to justify limiting activities or conduct even when it has an expressive or religious component, the Supreme Court has sanctioned limits on the content of speech only in extreme circumstances. In Holder v. Humanitarian Law Project (2010), for instance, the justices upheld a ban on policy advocacy undertaken under the direction of, or in coordination with, certain terrorist groups. This narrow prohibition was constitutional only because the coordinated speech amounted to a “material support” to terrorist groups. The same speech, if conducted independently, would have been fully protected.

Here, by contrast, the IRS seeks to control independent policy advocacy. That’s something the federal government may not do. Yet it’s the second time this decade for the IRS.

Messrs. Rivkin and Meyer practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/another-irs-free-speech-scandal-1542918151

Iranian Sanctions with an Extra Bite

Saudi Probe Is Not a Job For the U.N.

By David B. Rivkin Jr. and Lee A. Casey

October 24, 2018, in the Wall Street Journal

The murder of Jamal Khashoggi has justly triggered international outrage. Yet calls for a United Nations-led investigation are neither justified nor prudent.

Those urging the U.N. to investigate argue that with so much at stake, no sovereign state can be trusted to conduct a full and fair probe. And there is a potential for bias—by the Saudis, whose officials are implicated; by Turkey, a rival of Riyadh; and by the U.S., the Saudis’ longstanding strategic partner. The same is true of many other states, including Britain, France and Germany, all of which have economic and strategic interests in the region.

But this objection proves too much. There are numerous instances in which countries have been accused of terrible crimes, including torture and extrajudicial killings. The list includes the U.S. and every other permanent member of the Security Council. This standard would disqualify virtually every U.N. member.

The general rule is that sovereign states both have the authority and the obligation to put their own houses in order by investigating and prosecuting alleged offenses. Only in the most extreme circumstances can an international inquiry be justified—such as when the state concerned is incapable of undertaking the investigation, or when the alleged offenses rise to the level of widespread international crimes, for which international law prescribes individual criminal responsibility.

The classic examples are war crimes and crimes against humanity, neither at issue here. The murder of a specific person has very rarely been the subject of an international investigation, as in the case of former Lebanese Prime Minister Rafik Hariri’s 2005 assassination. Syrian and Hezbollah involvement was suspected, and the Lebanese government was unable to conduct an investigation free of interference. Beirut thus agreed to the Security Council resolution establishing an independent investigative commission. Yet that probe was shunned by most intelligence services and failed to bring to justice any high-level culprits.

In this instance, Saudi Arabia is fully capable of investigating Khashoggi’s death and has the greatest interest in the matter. Khashoggi was a Saudi national; so, it appears, are his killers. There is obvious concern about the fairness of a Saudi investigation because of the potential involvement of high-level officials close to the royal family, and the conflicting Saudi explanations have been justifiably criticized. Yet the kingdom has been a respected member of the international community and surely understands a whitewash would severely damage its standing.

Turkey, too, has legitimate interests here. If Riyadh officially sanctioned Khashoggi’s killing in its Istanbul consulate, it would be an abuse of the diplomatic rights Turkey affords another sovereign under treaty. The U.S. and other Western powers can and should support and assist both Riyadh’s and Ankara’s investigations.

The U.S. has a strong interest in preserving international legal norms, grounded in the 1648 Treaty of Westphalia, which recognize the nation-state as the highest authority and establish rules that apply equally to all states. There is a determined movement to undermine this traditional system in favor of a supranational authority. These efforts have frequently targeted America, including its operations in Afghanistan and Iraq, renditions, interrogations and drone strikes. These matters have elicited condemnations at the U.N. and demands for international investigations. The U.S. has properly opposed such demands because it can and does investigate the allegations itself.

This leaves us with only one solution, as Secretary of State Mike Pompeo put it a few days ago: “We’re going to give them”—the Saudis and the Turks—“the space to complete their investigations of this incident, and when they issue their reports, we’ll form our judgment about the thoroughness, depth and the decisions they make about accountability connected to that.”

Messrs. Rivkin and Casey practice appellate and constitutional law and have argued before international legal bodies, including the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice.

Source: https://www.wsj.com/articles/saudi-probe-is-not-a-job-for-the-u-n-1540335772

Kavanaugh hearing antics showed Dems’ contempt of Congress

By David B. Rivkin Jr.

Sept. 9, 2018, in The Hill

Democrats like to pillory President Trump for destroying American institutions and breaking the norms of conduct. Yet, during the Supreme Court confirmation hearing for Judge Brett Kavanaugh, Democrats blatantly and flippantly violated Senate norms, rules and traditions — and inflicted in the process considerable damage on the institution.

Sen. Kamala Harris (D-Calif.) interrupted the very first sentence of Senate Judiciary Committee Chairman Chuck Grassley’s (R-Iowa) opening statement. Protesters constantly interrupted questions asked by senators of both parties, as well as Kavanaugh’s answers; they were challenged only by Republican senators. But even in this chaotic atmosphere, Sen. Cory Booker’s (D-N.J.) decision to violate the committee’s confidentiality agreement with the executive branch, pursuant to which the committee received documents that otherwise would have been withheld, was particularly egregious.

On Wednesday night, Booker asked Kavanaugh about an email exchange dating to the aftermath of the 9/11 terror attacks. He quoted a committee confidential document — that is, a document that no senator had the authority to make public, and which Kavanaugh did not have in front of him.

Early Thursday, to ensure that  Kavanaugh and the American public would be able to see the emails for themselves, Grassley worked with the Department of Justice and former President George W. Bush’s attorney to release several committee confidential documents, including the one Booker had quoted. They were taken off the “committee confidential” roster at 4 a.m.

Despite the accommodation extended to him by Grassley and the Trump administration, Booker proceeded to engage in a display of remarkable grandstanding. On Thursday morning, he announced he would release the documents marked committee confidential. “This is about the closest I’ll ever have in my life to an ‘I am Spartacus’ moment,” he said — even though the documents had already been released.

Booker’s performance is stunning, in large part because he could have had the emails released well in advance of the hearing. As Grassley often made clear, senators were given the opportunity to request the public release of documents that were initially marked committee confidential, but only Sen. Amy Klobuchar (D-Minn.) did so. It seems that Booker decided to put his presidential ambitions ahead of Senate protocol and transparency.

Booker’s flouting of committee confidential protocol is more than a violation of the Senate rules. What he did is also truly destructive for the legitimacy of the Senate itself, given the fact that the documents at issue were provided to the Senate Judiciary Committee based on an assurance to the executive that they would be treated in accordance with certain procedures. Given this precedent, this administration and its successors will be much more reluctant to provide documents to the Senate based upon assurances that they will remain confidential, thereby impairing the Senate’s oversight and legislative functions.

All of this underscores the low esteem in which the Senate Democrats hold their own institution. This conclusion is reinforced by the fact that the email string that precipitated all of this sound and fury does not contain anything particularly dramatic or support what Booker implied: rather than seeming like someone who approved of racial profiling, even in the tense post-9/11 days, Kavanaugh makes clear that he “favor[s] effective security measures that are race-neutral.”

In marked contrast to the poor behavior of some senators, the nominee behaved with remarkable patience and thoughtfulness. Kavanaugh answered questions fully, effectively and fairly, while showing himself to be a fair and impartial judge. He declined to answer questions about cases that might come before the court and he avoided being brought into current political debates; doing either of those things would have undermined his appearance of impartiality. In so doing, he followed what is known as the Ginsburg Standard.

As Andrew Grossman and I recently argued in The Wall Street Journal, all judicial nominees must follow the rule, invoked by Justice Ruth Bader Ginsburg during her confirmation hearing in 1993: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case — it would display disdain for the entire judicial process.” Sen. Charles Schumer (D-N.Y.) once called this approach a “grand tradition,” and Kavanaugh upheld it by declining to answer questions about issues that might come before him, including abortion.

Meanwhile, Harris sought to pull Kavanagh into a political discussion of last year’s Charlottesville, Va., riots, and attempted to probe his view of how President Trump handled the situation. Kavanaugh responded, “I am not here to assess comments made in the political arena, because the risk is I’ll be drawn into the political arena.” With this answer, he again echoed Ginsburg, who refrained from answering political questions that were “not relevant to the job for which you are considering me, which is the job of a judge.”

Booker’s action has injured the Senate as an institution and merits an appropriate institutional response. Indeed, only the Senate has the constitutional authority to deal with this matter and, with this power, comes responsibility. Under Supreme Court precedent, Gravel v. United States (1972), Booker’s actions were clearly covered by the Constitution’s Speech or Debate Clause. Gravel, which involved the senator who made public during a committee hearing the top secret “Pentagon Papers,” teaches that senators are not subject to executive branch investigative or prosecutorial action in these circumstances, leaving the Senate as the only entity that is empowered to take any disciplinary action.

Whatever the nature of Booker’s action or his justification for it might be, the Senate is entitled to censure him, and that censure itself is immune from judicial review, as the D.C. Circuit made clear in Rangel v. Boehner(2015). There, a House member challenged his censure, and the court ruled that the judiciary had no power to inquire into congressional disciplinary actions because of the immunity conferred by the Speech and Debate Clause.

Kavanaugh showed respect for the Senate, the judiciary and the hearing itself. The same cannot be said for many of the senators asking him questions.

David B. Rivkin Jr. practices appellate and constitutional law in Washington, D.C. He served at the Justice Department and the White House Counsel’s office during the Reagan and George H.W. Bush administrations.

Source: http://thehill.com/opinion/judiciary/405506-kavanaugh-hearing-antics-showed-dems-contempt-of-congress

The Judicial ‘Resistance’ Is Futile

The U.S. Supreme Court does not act in haste, so the justices raised some eyebrows last month when they took only two weeks to agree to hear the government’s appeal of an immigration case. Normally it would have taken several months, and a ruling might not have come until 2019. Instead the court is expected to issue a decision in Trump v. Hawaii by the end of the current term, in June.

Why the rush? Because lower-court judges have been playing an extraordinary cat-and-mouse game with the Supreme Court over President Trump’s three executive orders limiting immigration from several terror-prone countries. Over the past year, numerous trial and appellate courts have enjoined those orders, only to have the high court stay their decisions.

The lower-court judges have defied precedent by holding that the president has neither constitutional nor statutory authority to issue these orders. They have improperly questioned Mr. Trump’s motives, even analyzing his campaign statements for evidence of bad intent. And they have responded to each reversal from the high court by spinning new theories to strike down the orders. The judges appear to have joined the “resistance,” and it wouldn’t be surprising if the justices concluded enough is enough.

The case the court will now review is the handiwork of the Ninth U.S. Circuit Court of Appeals, which engaged in an analysis that ignored key precedents and misapplied accepted canons of statutory interpretation.

Any legal analysis of the travel orders must begin with the core constitutional propositions, articulated by the Supreme Court in Knauff v. Shaughnessy (1950), that “an alien who seeks admission to this country may not do so under any claim of right” and that the authority to exclude aliens “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Congress has the leading role in determining who may immigrate, stay and become a citizen. But the president has independent plenary authority to exclude aliens for foreign-policy or national-security reasons.

The Ninth Circuit brushed aside Knauff and held that Mr. Trump “lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” Then it went a step beyond that.

In 1952 Congress enacted a statute authorizing the president to “suspend the entry of all aliens or any class of aliens” whenever he finds their entry to be “detrimental” to the national interest and to establish restrictions on entry. The Ninth Circuit declared that the law as written amounts to an unconstitutional delegation of legislative power—never mind that in Knauff the high court dismissed such a challenge to a similar statute, holding that Congress had merely reaffirmed the president’s own constitutional authority.

The Ninth Circuit further argued that even if the statutory language was constitutional, it was outweighed by a provision in the 1965 Immigration and Nationality Act barring discrimination on the basis of nationality. But that provision applies to the issuance of immigrant visas, not the entry of aliens. Holding that a statute dealing with one issue vitiates a statute dealing with another matter is not, to put it mildly, an accepted statutory interpretation method.

The circuit judges still weren’t done. They held that even if the 1952 statute applied, Mr. Trump failed to comply with it. The judges characterized his proclamation as reflecting “general immigration concerns” not grounded in critical foreign-policy or national-security findings. In fact, the order clearly stated the action or inaction of the eight designated governments made it impossible to assess adequately whether admission of their nationals creates an unacceptable risk to the U.S.

That was an especially egregious error. The Constitution and Supreme Court cases going back to the seminal Marbury v. Madison (1803) grant the courts no authority to review the discretionary policy choices made by the political branches. When it comes to immigration, the judiciary’s role is limited to determining whether any procedural requirements Congress had enacted have been satisfied. That is what the Supreme Court did in Knauff and what the Ninth Circuit should have done here.

The Supreme Court seems likely to correct this error. The justices voted 7-2 in December to stay any judicial order stopping implementation of the current immigration policy, even before the Ninth Circuit’s decision was issued. One hopes the justices will strongly affirm that the president has the power to exclude aliens from the U.S. for foreign-policy and national-security purposes, and that the judiciary has no role in reviewing his policy choices in this area. A unanimous ruling would send an especially strong message.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department in the Reagan and George H.W. Bush administrations.

Source: https://t.co/CTxCOOSJ8F