Tag Archives: supreme court

The Justices Lay Down the Law

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

June 27, 2017, in the Wall Street Journal

In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.

The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.

The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.

The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity.

That, the court specifically cautioned, is not an invitation for evasion by immigration advocates: “For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

That exception, Justice Thomas noted for the dissenters, was a “compromise”—most likely the product of Chief Justice John Roberts’s effort to achieve a unanimous decision. Given the circumstances, this was a good outcome. It lends the imprimatur of the full court to the rebuke of the lower courts, and avoids the kind of partisan split that prevailed in both the Fourth and Ninth Circuit Courts of Appeals. All nine justices are also now on record supporting the proposition that the vast majority of foreign nationals cannot claim a constitutional right to enter the United States.

When the court reviews the merits of the case in the fall, however, such considerations will be out of place. While courts can adjudicate cases involving immigration and other foreign affairs issues, judicial engagement in this space is fundamentally different than in domestic affairs. In an area of decision-making that involves both institutional knowledge of international affairs and continuous access to classified information, great deference is in order from the courts. If the courts wade into this area, they would undermine both national security and respect for the judiciary. The perception that judging is swayed by political or ideological considerations would be particularly calamitous in this area. Better a 5-4 decision articulating this view clearly than a unanimous but equivocal one.

The odds of a clear outcome are good. As Justice Thomas pointed out, his colleagues’ “implicit conclusion” is that the administration is likely to prevail on the merits. The high court’s own precedent in this area is clear. Nonresident aliens have no constitutional right to enter the U.S. When denying entry, the president need only provide a “facially legitimate and bona fide” justification. As the court held in Kleindienst v. Mandel (1972), once that justification is established, there is no further inquiry or balancing for the courts to make.

Any other decision would be both inconsistent with the court’s precedent and injurious to the Constitution’s separation of powers. It would also compromise the president’s ability to defend the nation at home and abroad and cause grave harm to the judicial branch in maintaining its own critical constitutional role.

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

Source: https://www.wsj.com/articles/the-justices-lay-down-the-law-1498604382

The Fourth Circuit Joins the ‘Resistance’

Another court has weighed in against President Trump’s executive order temporarily limiting entry to the U.S. of aliens from six terrorist hotspot countries in Africa and the Middle East. In ruling against the order last week, the Fourth U.S. Circuit Court of Appeals defied Supreme Court precedent and engaged the judicial branch in areas of policy that the Constitution plainly reserves to the president and Congress. The high court should reverse the decision.

In International Refugee Assistance Project v. Trump, the Fourth Circuit affirmed a Maryland district judge’s nationwide injunction halting enforcement of the president’s order. Chief Judge Roger Gregory, writing for the 10-3 majority, acknowledged that the “stated national security interest is, on its face, a valid reason” for the order. But he went on to conclude that the administration acted in bad faith based on, among other things, “then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith.”

Whatever one may think of that conclusion as a political matter, as a legal matter the judges overstepped their bounds. The controlling case is Kleindienst v. Mandel (1972), in which the Supreme Court rejected a petition from American scholars seeking admission to the country on behalf of a foreign colleague who had been kept out because he advocated communism. The plaintiffs argued that the government’s refusal to admit their colleague on account of his views violated their First Amendment rights. The justices upheld his exclusion and made three things clear: first, aliens have no constitutional right to enter the U.S.; second, American citizens have no constitutional right to demand entry for aliens; and third, the decision to deny admission to an alien must be upheld if it is based on “a facially legitimate and bona fide reason.”

 The high court has repeatedly reaffirmed and followed Mandel. Fiallo v. Bell (1977) rejected a challenge to immigration preferences that openly favored legitimate over illegitimate children and female U.S. nationals over male—distinctions that almost certainly would have been found unconstitutional in a domestic-policy context. In Kerry v. Din (2015), the justices upheld visa denial for the complainant’s husband, who had been a member of the Taliban. When the executive branch makes a decision “on the basis of a facially legitimate and bona fide reason,” Justice Anthony Kennedy wrote, quoting Mandel, the judiciary can “ ‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of the citizens the visa denial might implicate.”

In holding that Mr. Trump acted in bad faith, the Fourth Circuit fundamentally misconstrued Justice Kennedy’s opinion in Din,which nowhere suggested that, once the government had articulated a facially legitimate purpose, the courts could weigh whether there might have been an additional, improper purpose. As the Fourth Circuit dissenters explained, Mandel requires only a facially legitimate and facially bona fide reason.

Any other standard would constitute an invitation to the judiciary to direct the nation’s foreign and defense policies. Having misapplied Din, the Fourth Circuit went on to apply a standard domestic case-law analysis, under which the existence of a discriminatory purpose essentially dooms the exercise of governmental authority irrespective of other justifications. Under that approach, the government would have lost in Mandel, Fiallo and Din.

If the Fourth Circuit’s reasoning were to stand, it could cripple the president’s ability to defend the country. The judges claim Mr. Trump’s campaign statements, supposedly hostile to Islam rather than Islamist terror, transform his order into an “establishment” of religion in violation of the First Amendment. If the president is forbidden to impose temporary limitations on immigration from any Muslim-majority nations, it would follow that he is prohibited from taking any hostile or unfavorable actions, including the use of economic sanctions or military force, toward any Muslim-majority nation.

Making foreign policy is not the judiciary’s job, and the court’s decision in this case is in direct conflict with the Supreme Court’s admonition in Mandel that courts may not review the president’s exercise of discretion on foreign affairs—or balance it against asserted constitutional interests—once a facially legitimate and bona fide reason has been articulated. Further, the executive order is clearly authorized by Congress under the Immigration and Nationality Act. As Justice Robert Jackson famously observed in Youngstown v. Sawyer (1952), the president’s authority is most formidable when he is acting with Congress’s consent.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr. Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No. 78.

The government is likely to seek an emergency Supreme Court stay of the Fourth Circuit’s decision. That may be difficult, because it requires a showing of “irreparable harm.” But even without a stay, there is little doubt the Supreme Court will remain faithful to its precedents and reverse the Fourth Circuit’s wrongheaded decision.

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

Source: https://www.wsj.com/articles/the-fourth-circuit-joins-the-resistance-1496071859

‘You’re Fired,’ Trump Should Tell Richard Cordray

Under a dubious statute, the CFPB head can be dismissed only for cause—but there’s plenty of it.

By David B. Rivkin Jr. and Andrew M. Grossman

April 13, 2017, in the Wall Street Journal

The greatest mystery in Washington involves not Russian spies or wiretaps but Richard Cordray’s continued employment as director of the Consumer Financial Protection Bureau. In the face of President Trump’s mandate for change, Mr. Cordray continues the Obama administration’s regulatory crusade against lenders, blocking access to the credit that supports so many small businesses and so much consumer spending.

Why would a president who made a TV show out of firing underlings now suffer a subordinate who refuses to get with the pro-growth agenda he campaigned on? If reports from the West Wing are to be believed, Mr. Trump’s unusual timidity is the result of overcautious legal and political advice.

Mr. Cordray is insulated from presidential control by a New Deal-era innovation: a statutory clause that allows the president to fire an independent agency head only “for cause,” meaning “inefficiency, neglect of duty, or malfeasance in office.” In October a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia struck down that restriction an infringement of the president’s constitutional authority to “take care that the laws be faithfully executed.”

When Congress created the CFPB by passing the Dodd-Frank Act of 2010, Judge Brett Kavanaugh explained, it broke with decades of historical practice. Generally the power of independent agencies is diffused among multiple commissioners or directors so as to reduce the risk of abuse. Unless he can be fired, Mr. Cordray, as the sole director of the CFPB, wields more unilateral power than any government official save the president.

The panel’s decision, however, was set aside in February when the full 11-judge court voted to rehear the case. White House lawyers are reportedly waiting to see how the litigation unfolds—a process that could go well past the end of Mr. Cordray’s term in mid-2018.

But it is a mistake to regard the twists and turns of that appeal as a reason to give Mr. Cordray a reprieve. Whatever the D.C. Circuit ultimately decides, no one disputes that the president may dismiss the CFPB director for cause. And the evidence is ample to support firing Mr. Cordray, on all three grounds permitted under law:

Inefficiency. Regulation, the Supreme Court has recognized, should seek to maximize economic efficiency through cost-benefit analysis. Yet the CFPB has pursued an agenda at odds with any clear-eyed view of economic growth and efficiency.

Its rules have made community banks and credit unions more reluctant to issue mortgages, particularly in rural areas, and accelerated consolidation of the industry, reducing competition. Its regulations have limited access to checking accounts, credit cards and other financial products, driving vulnerable Americans to depend on riskier sources of financial services and credit. The agency has even worse policies in the works, such as limits on consumer arbitration and payday lending.

Taken as a whole, the CFPB’s heavy-handed approach to regulation and enforcement has driven up the cost of borrowing, to the detriment of consumers and small businesses.

More prosaically, Mr. Cordray’s CFPB has botched basic administrative procedures meant to ensure efficiency in regulation. About a third of its rules were finalized before being published in the agency’s Unified Agenda, depriving the public of valuable notice and frustrating the regulatory review process. That haste has also led to serious errors: About a quarter of the CFPB’s rules have required correction after being finalized. Further, Mr. Cordray has specifically embraced “regulation through enforcement,” which forgoes orderly rule making entirely in favor of imposing penalties for newly contrived “violations.” This is no way to run a financial watchdog.

• Neglect of duty. Mr. Cordray allowed tens of millions of dollars in cost overruns to pile up for a lavish renovation of the CFPB’s Washington headquarters.

The agency also missed the major consumer-finance scandal of the past decade. It ignored years of complaints about an epidemic of unauthorized customer accounts at Wells Fargo . The CFPB galloped in to exact a penalty only after an investigation by California officials and other regulators was complete.

Malfeasance. What was the CFPB doing all that time? The bureau, it turns out, had spread its resources too thin, focusing on alleged discrimination in auto-dealer lending—an area that Congress specifically excluded from its purview. Not only did the agency run roughshod over that limitation, but its statistical analysis relied on dubious methods such as guessing borrowers’ race based on their surnames.

No such guesswork was required for the Merit Systems Protection Board and Government Accountability Office to find that the CFPB itself had become a hotbed of race and sex discrimination. As early as 2013, a report by Deloitte Consulting revealed that the agency’s internal performance reviews were biased against minority employees, many of whom also reported discrimination at the agency. Years later, claims of discrimination persist, particularly among black employees. Mr. Cordray failed to resolve these issues even years after initial reports.

Any of these things would be sufficient to dismiss Mr. Cordray for cause. All of them together make it necessary to do so.

If Mr. Cordray were to challenge his firing, we have little doubt the courts would support Mr. Trump. Assuming the courts even agreed that they have the power to review a presidential finding of cause for dismissal—which is far from established—they would still grant it substantial deference. The president would prevail, so long as he has documented his findings, explained his reasoning, and satisfied any due-process concerns by affording Mr. Cordray an opportunity to respond.

As far as Mr. Cordray is concerned, no further caution is required. What the president needs is resolve, and his famous TV catchphrase.

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

Source: https://www.wsj.com/articles/youre-fired-trump-should-tell-richard-cordray-1492124207

The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States.” Numerous presidents have used this authority to suspend entry of aliens from specific countries.

Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.” In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): “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.” That point the Ninth Circuit ignored entirely.

The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible.

President Obama chose to toughen vetting standards for these countries’ nationals rather than bar their entry completely. But if Mr. Trump has a different view of the threat, it is not up to the courts to decide who is right. This is a classic example of a nonjusticiable “political question,” involving matters constitutionally vested in the president and Congress.

Judges—were they adjudicating a suit brought by a party with standing—could overturn the president’s order if it entailed clear violations of due process or equal protection. But attempting to discern Mr. Trump’s motivation in selecting these countries exceeds the judiciary’s proper constitutional role. Judges scrutinize government motives in the domestic context, if presented with allegations that facially neutral governmental action is motivated by invidious discrimination. That inquiry is inappropriate in the foreign-policy sphere.

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

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

Source: https://www.wsj.com/articles/the-ninth-circuit-ignores-precedent-and-threatens-national-security-1486748840

Is President Trump’s executive order constitutional?

February 6, 2017, in the Washington Post

Editor’s note: On Friday, U.S. District Judge James L. Robart issued a ruling temporarily halting enforcement of President Trump’s executive order barring entry to the U.S. for citizens of seven majority-Muslim countries. On Monday evening, David Rivkin and Karen Tumlin exchanged views and predictions about the legal fight over the executive order. The email discussion was moderated by Post Opinions digital editor James Downie and has been edited for style and clarity.

Karen Tumlin: Hi, James and David, looking forward to having this discussion with you both on this important topic.

The executive order has several legal problems. I would highlight two of the most serious. First, ours is a nation that was founded on the premise that individuals should be free from religious discrimination by the government. That principle is enshrined in our Constitution and prohibits the federal government from discriminating against or favoring any religious group. This executive order does both. By banning the entry of individuals with valid visas from seven majority-Muslim countries, there is no question that the executive order singles out Muslims for disfavored treatment. Equally questionable is the preference given to minority religions under the executive order for refugees. Practically, this favors the admission of Christians.

Second, in addition to this broad delegation of authority from Congress, the president has inherent, formidable constitutional authority of his own over foreign affairs and national security, with the power to control immigration being an integral part of those authorities. So, here we have two political branches that have spoken in unison on this issue, placing the president in the strongest possible legal position. Last but not least, well-established Supreme Court precedents indicate that states — like the states of Washington and Minnesota — have no equal-protection rights of their own, nor can they vindicate equal-protection rights of their citizens. The same is true about being able to challenge alleged religious discrimination. This limitation on the states’ authority to champion such claims is fundamental to our separation-of-powers architecture.

Tumlin: When looking at the legality of this executive order, we have to look back to the very clear, discriminatory intentions for the order that were laid down repeatedly on the campaign trail by then-candidate Trump to create a ban on the entry of Muslims to the United States. The text of the executive order serves to implement that shameful campaign promise, as do statements by the president and the drafters of the order since its signing. Our Constitution does not stand for this kind of governmental discrimination.

You don’t have to discriminate against every Muslim in the world to run afoul of our Constitution’s protections and human decency.

The executive order doesn’t make us safer as a country, it puts us more at risk. But don’t just take my word for it. Have a look at the declaration submitted Monday at the U.S. Court of Appeals for the 9th Circuit by a host of national security ex-officials from both sides of the aisle noting that in their “professional opinion, this Order cannot be justified on national security or foreign policy grounds.”

Rivkin: I disagree. There are a few instances that arise in the unique context of domestic equal-protection challenges to governmental actions that are facially neutral but produce substantial discriminatory impacts on groups of people, based on such suspect classifications as race, nationality, ethnic origin, etc. This doctrine has never been used in foreign affairs, both because of the tremendous judicial deference owed in this area to the two political branches and because discerning the intentions of the president is particularly difficult in the national security area, given the inherent lack of judicial competence in foreign affairs and lack of access to classified information.

 And, as a practical matter, under your logic, courts would rule differently on the constitutionality of exactly the same executive orders, suspending entry of certain types of aliens — with Obama’s order delaying the entrance of refugees from Iraq and President Ronald Reagan’s suspending the entrance of certain Cuban nationals — depending on how they felt about the subjective intentions of a given president. This cannot possibly be true.

And, to reiterate, as far as the judgments regarding whether or not this order makes us safer, such judgments are uniquely unsuited for judicial discernment and the judiciary is barred from engaging on them on the basis of the Supreme Court’s case law, known as the political question doctrine. The fact that some former national security officials challenge the policy wisdom of the order, while other national security officials — most notably those of this administration — support it, merely demonstrates that these are policy disputes that the judiciary is both ill-equipped and constitutionally barred from arbitrating.

James Downie: Karen, how would you respond to the argument that the president has the authority to enact this order?

Tumlin: The president is not king. He, too, must abide by our Constitution as well as the immigration laws duly written and passed by Congress. What the president has done here is attempt to hastily legislate by executive fiat. The result has been confusion among federal officials unsure of how to interpret or implement this presidential dictate and very real human suffering. And let’s be clear, this executive order does not only target non-U.S. citizens living abroad. It has profound consequences on U.S. citizens who can’t bring their parents in to witness the birth of a child, or on businesses that can’t send their most talented U.S.-based executives abroad for important meetings. And the order has left others in limbo overseas who may have taken a trip abroad to, for example, visit an ill relative, and unless the Washington state decision stands will not be able to return to their families and jobs in the United States because their validly issued visa vanished overnight.

Downie: David, can you expand on the argument that it’s not discriminatory against Muslims? Ilya Somin elsewhere on The Post’s site writes, “The unconstitutional motive behind Trump’s order can’t be sidestepped by pointing out that it blocks some non-Muslim refugees too. Poll taxes and literacy tests excluded a good many poor whites from the franchise, but were still clearly aimed at blacks.” What are your thoughts on that?

 Rivkin: My argument is focused on the fact that a relatively small percentage of the world’s Muslim countries are impacted by this order. Stated differently, this executive order is a singularly ineffective — in legal parlance, it would be called under-inclusive — form of a Muslim ban. Accordingly, it is not a Muslim ban at all, but a suspension of entrants from seven countries with conditions on the ground that both promote terrorism and make effective vetting impossible. By contrast, poll taxes were very effective in excluding blacks, as well as impacting many poor whites; in legal parlance, they were overly inclusive but nevertheless served their intended discriminatory purpose. This is fundamentally not the case here.

Tumlin: I would humbly submit that a more relevant lens to look at this question is in terms of recent Muslim migration to the United States. For example, 82 percent of all Muslim refugees who entered the United States in fiscal years 2014 through 2016 hailed from the seven countries. The executive order may not use the words “Muslims keep out,” but it certainly would serve to achieve that goal if allowed to stand.

Downie: In closing, how do you expect the 9th Circuit to decide on Robart’s ruling?

Rivkin: I believe that the 9th Circuit will not let Robart’s decision stand. I say this fully appreciating the fact that the 9th Circuit is the most idiosyncratic in the country and the one most often overruled by the Supreme Court. However, given the fact that the case brought by the states is so deeply flawed — they fail both standing-wise and merits-wise — I believe that the 9th Circuit will do the right thing and will rule in a matter of days. I would also expect that, because the plaintiffs in this case lack standing, the 9th Circuit would not only overturn Robart’s temporary restraining order but would dismiss the entire case without ever reaching the merits. If I am wrong and the 9th Circuit fails to do this, I have every confidence that this would be the result reached by the Supreme Court, when it became seized of that case.

Tumlin: I respectfully disagree with David on this always risky judicial crystal ball-gazing. In the 10 days since the executive order was signed, we have seen people take to the streets all across this country to protest it, lawyers like me have taken to the courts to challenge its illegality, and a diverse and stunning cross-section of Americans from every walk of life have questioned its wisdom. All because this executive order stands in sharp contrast with our legal and moral principles as a nation. I have every confidence that the 9th Circuit will let this temporary block on this harmful executive order stand.

 It is also worth mentioning that a real question exists as to the propriety of the 9th Circuit weighing in on the district court’s order at all at this time. Generally, temporary restraining orders are not appealable immediately to the higher courts.

Rivkin: In our constitutional system, the extent of political controversies, including the protests, surrounding a given issue is utterly unrelated to the analysis of legality and should have no effect on any court. And whether or not this order is inconsistent with our moral and legal traditions is a classical hortatory declaration, suitable for political debates, and is not a viable legal argument.

David B. Rivkin Jr. practices appellate and constitutional law in the District and served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Karen Tumlin is legal director for the National Immigration Law Center and the NILC Immigrant Justice Fund.

Source: https://www.washingtonpost.com/opinions/is-president-trumps-executive-order-constitutional/2017/02/06/26ee9762-ecc1-11e6-9973-c5efb7ccfb0d_story.html

What Kind of a Judge Is Neil Gorsuch?

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

The Wall Street Journal, Jan. 31, 2017 

Judge Neil Gorsuch, President Trump ’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals. In the decade since, he has written some 850 opinions.

The way to take a judge’s measure is to read his opinions, and so we set out to review Judge Gorsuch’s. It was not an arduous task, for his prose is unusually engaging—think Scalia, with none of the abrasiveness. Justice Elena Kagan has declared herself a fan of his writing style. The only difficulty in summarizing Judge Gorsuch’s output is the compulsion to quote, at length, from so many of his opinions.

One opens this way: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft.” The case, by the way, was a prosaic dispute between insurers. Another opinion starts: “What began as a fight at a strip club finds its way here as a clash over hearsay.”

Judge Gorsuch shows a concern for the people whose disputes are before the court. Each opinion typically begins with the name of the person seeking relief and why. A recent example: “After a bale of hay hit and injured Miriam White while she was operating her tractor, she sued the manufacturer, Deere & Company.” Ms. White’s appeal was summarily denied, but even the brief, three-page opinion reflects a serious engagement with her arguments and the facts—in contrast with the boilerplate language judges often use in such decisions. Win or lose, parties appearing before Judge Gorsuch surely know that they have been treated with fairness, consideration and respect.

These are not stylistic flourishes, but central to how Judge Gorsuch views the judicial role. “In our legal order,” he has written, “judges distinguish themselves from politicians by the oath they take to apply the law as it is, not to reshape the law as they wish it to be.” When a judge understands that he has no authority to legislate from the bench, cases that might otherwise be hard become straightforward exercises in applying law to facts.

Thus, Judge Gorsuch could recognize the “tragic circumstances” of a family whose daughter had died in a rafting accident, while still holding that the liability release she had signed was legally binding. That Colorado allows people to assume such risks, he explained, was a choice for the state’s General Assembly, not the court.

In a similar dissent, Judge Gorsuch argued for allowing a seventh-grader who was arrested for horseplay in gym class to sue the police officers, reasoning that no New Mexico statute authorized the arrest. And he has vigorously enforced rights of religious exercise under statutes like the Religious Freedom Restoration Act, deferring to Congress’s decision to vindicate, as he put it, “this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed. In a memorial lecture last year, Judge Gorsuch said that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” Textualism, he added, serves to “confine the range of possible outcomes and provide a remarkably stable and predictable set of rules people are able to follow.” On the other hand, attempting to divine legislative intent, as he wrote in one opinion, is a “notoriously doubtful business.” Another opinion decried the judicial “conjuring” that substitutes the court’s view of optimal policy for Congress’s.

In an influential 2015 decision, Judge Gorsuch excavated the meaning of a law increasing penalties on anyone who “uses” a gun “during and in relation to” a drug offense. He carefully employed “plain old grade school grammar”—including a sentence diagram.

Judge Gorsuch’s textualism extends to the Constitution, quite emphatically: “That document,” he wrote, “isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.

What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.

The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.

Messrs. Rivkin and Grossman practice appellate and constitutional law with Baker & Hostetler in Washington.

Source: https://www.wsj.com/articles/what-kind-of-a-judge-is-neil-gorsuch-1485912681

When Is a Judge Not Really a Judge?

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

Jan. 23, 2017 in the Wall Street Journal

An “alphabet soup” of federal agencies established since the 1930s have gradually supplanted the rule of Congress and the courts with the rule of supposed expertise. This accumulation of power is what James Madison identified in Federalist No. 47 as “the very definition of tyranny.” An example of this trend is the Securities and Exchange Commission’s increased use of in-house administrative law judges under the Obama administration.

Following high-profile losses in federal court—remember the insider trading charges against Mark Cuban?—the SEC decided to file fewer enforcement cases in courts presided over by independent judges. Instead, the agency began to take advantage of its in-house administrative law judges. Conveniently, a change in the Dodd-Frank Act authorized the agency’s judges to hear more kinds of cases and dispense more penalties.

Administrative law judges are agency employees. The proceedings they oversee provide fewer protections than court cases. They also tend to set stern deadlines and limit the right to factual investigation, often leaving defendants to rely on the SEC’s evidence. According to a 2015 Wall Street Journal analysis, the agency’s shift paid off: Through the beginning of that year, it won 90% of cases in its in-house court, compared with 69% of regular court cases. Administrative decisions can be appealed to court but are rarely reversed. That’s because the judges apply a deferential “clear error” standard to the agency’s factual findings.

The due-process problems inherent in this arrangement are apparent. Less obvious, at least to the SEC, is that it also violates the Constitution’s Appointments Clause, which requires Senate hearings and confirmation votes for department heads and other senior officials. To promote political accountability, the Constitution also requires that “inferior officers” with significant responsibility be appointed by the president or senior officials who are confirmed by the Senate.

This month, the 10th U.S. Circuit Court of Appeals ruled that the SEC’s administrative law judges aren’t mere employees but inferior officers. They take testimony, rule on motions, issue subpoenas, preside over triallike hearings, make factual determinations and can even enter judgments and impose penalties in certain circumstances. The court’s analysis was guided by a 1991 Supreme Court decision holding the same about “special trial judges” who had similar powers under the U.S. Tax Court. The SEC will surely appeal, and there is a high likelihood that the Supreme Court will affirm the lower court’s ruling.

The immediate problem for the SEC is that Congress hasn’t authorized the appointment of administrative law judges through the constitutional process. So the agency faces the risk, in cases it tries in-house, that its decisions will be voided. The SEC and its allies will push for a legislative fix so that in-house judges can be properly appointed. Congressional Republicans should use the demand for legislation as a bargaining chip for other reforms, such as restricting cases that can be heard in administrative courts.

But a legislative fix only heightens the contradictions of trying these cases outside of real courts. Due process requires that judges be neutral. A fix would make them political appointees.

Moreover, in Free Enterprise Fund v. Public Accounting Oversight Board (2010), the Supreme Court struck down an arrangement whereby appointed officers were double-insulated from removal. They could lose their jobs only for good cause, and the agency head with the power to remove them could himself only be fired for good cause. That kind of double protection, the court explained, impermissibly “subverts the President’s ability to ensure that the laws are faithfully executed” and “the public’s ability to pass judgment on his efforts.”

Administrative law judges are nearly identically insulated from political control. They can be dismissed only for good cause by their agencies, and even then only if the Merit Systems Protection Board agrees. If the 10th Circuit’s decision is upheld, this will almost certainly be the next shoe to drop, and it will leave administrative law judges subject to political control.

That means the in-house judges will be political appointees subject to the supervision of other political appointees—and at risk of dismissal for failure to follow instructions. Will agencies be able to maintain the pretense that they are “judges” in any meaningful sense? It’s difficult to see how.

The SEC’s overreaching may spell the end of the administrative state’s growth—marking the point when Congress and the courts started to regain lost ground. Thanks, Mr. Obama.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C.

Source: http://www.wsj.com/articles/when-is-a-judge-not-really-a-judge-1485215998