It’s so very easy in our flash-bang 24/7 “news” cycle to blow past stories like this. It probably won’t get a lot of play because it has to do with principle and jurisprudence and it undermines the preferred narrative of DJT getting his ample rear handed to him by the courts regarding his initial Executive Order on immigration (“EO1”). But this one’s worth a few moments of consideration. I haven’t consumed sufficient caffeine yet this morning to do it justice, so I’ll start by relying on Jonathan Turley’s excellent breakdown of this rather uncommon dissent.
Not to wander too far into the weeds, but here’s what happened procedurally: The District Court in Washington issued a restraining order regarding EO1 which prohibited the government from implementing it pending appeal. The government moved for a stay of that restraining order, seeking leave to proceed with implementation pending the appeal. The 9th Circuit, in a ruling which surprised exactly no one, denied that motion on February 9th. That Order then became moot when the government moved to dismiss its appeal, which motion was granted on March 8th. None of the parties moved to vacate the February 9th Order, but one of the 9th Circuit judges called for a vote on it to be reconsidered en banc (by the entire court). That vote failed, so the February 9th opinion will stay on the books, despite its mootness.
Now, here’s where things get rather intriguing: Five of the 9th Circuit judges, including Chief Judge Alex Kozinski, filed a written dissent to the Order denying vacatur of the original opinion. And the reasoning they gave for doing so is compelling:
“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 “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).”
*”Our personal views are of no consequence. I note this only to emphasize that 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. “
How refreshing to see jurists acknowledging and embracing their proper role. How disheartening to realize what a rarity this is. The entire dissent, penned by Judge Jay Bybee, can be found here. It’s well-worth the read.
Again, I don’t expect you’ll hear or read much about this. My only inkling of it came from a piece which ran in Slate yesterday (which I won’t link), crowing that “a much lengthier rebuke to Trump came from the pen of one of America’s most conservative judges, Jay Bybee.” The piece is referencing Bybee’s concluding paragraph:
“Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. 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. 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. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.”
Judge Bybee’s point is well-taken. But lost in the championing of his rebuke is the larger point of the dissent: The District Court and the 9th Circuit got it wrong on the merits. And allowing our emotions to rule the day rather than constitutional principles is nothing to crow about.