Daniel Hemel  //  3/16/17  //  Commentary


The Ninth Circuit’s decision to deny en banc review in Washington v. Trump was not, of course, the biggest development yesterday in litigation related to the President’s executive orders restricting entry from seven six overwhelmingly Muslim countries. But the Ninth Circuit’s denial of reconsideration—and, more specifically, Judge Bybee’s dissent from the denial—is worthy of attention nonetheless, not just because of what it tells us about the internal dynamics of what is arguably the nation’s second most important court (sorry, D.C. Circuit), but also because Judge Bybee’s opinion represents the most articulate argument to date by a sitting federal judge for upholding the President’s actions on immigration.

First, reading the tea leaves: Note that Judge Bybee’s dissent was joined by just four of his colleagues, Judges Bea, Callahan, Kozinski, and Ikuta. That tells us something about the prospects in the Ninth Circuit for Trump Travel Ban version 2.0. There are 25 active judges on the Ninth Circuit, seven of whom were appointed by Republican Presidents. Some Ninth Circuit judges might have voted against rehearing en banc because they think that review of a panel decision regarding Trump Travel Ban Version 1.0 is a poor use of the court’s limited resources now that the release of version 2.0 has mooted the issue. So too, some Ninth Circuit judges who voted against en banc review in Washington v. Trump might conclude that version 1.0’s infirmities do not extend to its successor.

Still, if I were the White House counsel or Trump’s new solicitor general, I would not look at the 20-5 vote and like my odds.

Second, reading the dissent: This is one more reminder why folks on the left side of the spectrum should admire Judge Bybee even when we disagree with his conclusions. (Here, I part ways with the New York Times editorial board, which has called for Judge Bybee’s impeachment due to the memos he wrote regarding waterboarding while an assistant attorney general under President George W. Bush.) Take a look at the last paragraph of Judge Bybee’s opinion (which Steve Vladeck also highlights over at Just Security):

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.

I won’t say much more about that paragraph of Judge Bybee’s dissent because I don’t think I can say it better than Judge Bybee. The only part of the above-quoted passage with which I disagree is Judge Bybee’s description of the panel opinion as “flawed.” In my assessment, Judge Bybee points out one real weakness in the panel’s opinion but not a weakness that goes to the heart of the panel’s ultimate decision.

Here’s where Judge Bybee lands his strongest blow:

The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972) . . . In Mandel, [the Supreme Court] concluded that when the executive has exercised its authority to exclude aliens “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant."

In this case, the government argued that Mandel provided the proper framework for analyzing the States’ claims. The panel, however, tossed Mandel aside because it involved only a decision by a consular officer, not the President. Two responses. First, the panel’s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head. We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision? With a moment’s thought, that principle cannot withstand the gentlest inquiry, and we have said so. . . . Second, 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. . . . If the panel is correct, it just wiped out any principle of deference to the executive.

It looks to me like Judge Bybee is right: the panel’s distinction of Mandel doesn’t hold water. The panel says that “exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard,” but as Judge Bybee points out, the Supreme Court has said pretty explicitly that exercises of policymaking authority at the highest levels of the political branches are indeed subject to the Mandel standard. See Fiallo v. Bell, 430 U.S. 787, 795 (1977) (“We can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel”).

Does that mean that the panel opinion is “flawed”? No, because the Mandel standard applies to the admission of nonresident aliens who are outside the United States. See Mandel, 407 U.S. at 762 (“It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.”). By contrast, the panel’s primary reason for upholding the district court’s temporary restraining order was that Trump Travel Ban version 1.0 violated the Fifth Amendment due process rights of lawful permanent residents and other individuals inside the United States. Whether or not the panel “tossed Mandel aside” on the right grounds, it ultimately should have tossed Mandel aside as addressing a different issue than the one on which it ruled.

Mandel‘s “facially legitimate and bona fide” standard is more directly relevant to the litigation regarding version 2.0, which does not apply to lawful permanent residents or individuals already inside the United States. Judge Bybee will presumably make the same argument regarding version 2.0 that he made regarding version 1.0 in his dissent:

Applying Mandel here, . . . the Executive Order was easily “facially legitimate” and supported by a “bona fide reason.” . . . Justice Kennedy indicated in [Kerry v.Din that it might have been appropriate to “look behind” the government’s exclusion . . . if there were “an affirmative showing of bad faith on the part of the consular officer . . . .” . . . Suffice it to say, it would be a huge leap to suggest that Din’s “bad faith” exception also applies to the motives of broad-policy makers as opposed to those of consular officers. Even if we have questions about the basis for the President’s ultimate findings—whether it was a “Muslim ban” or something else—we do not get to peek behind the curtain. So long as there is one “facially legitimate and bona fide” reason for the President’s actions, our inquiry is at an end.

This is where I lose hold of Judge Bybee’s logic. Judge Bybee says that the same “facially legitimate and bona fide” standard from Mandel should govern consular officer decisions and executive orders alike. Justice Kennedy’s opinion in Din—which Judge Bybee recognizes as controlling—acknowledges that a decision to exclude an alien can be struck down under Mandel if there is “an affirmative showing of bad faith” on the part of the decisionmaker. Of course it can: If three years of high school Latin taught me anything, it’s that “bona fide” means “in good faith.” Surely a decision made in bad faith does not satisfy a standard requiring good faith.

Judge Bybee seems to suggest at the end of the above-quoted passage that a decision to exclude an alien can be made both in good faith and bad, and that as long as there is some good faith in the mix, the decision satisfies Mandel. I do not understand how that could possibly be the case. The whole idea of “bad faith” is that the actor purports to act on the basis of one legitimate reason while actually being motivated by a second illegitimate reason. If simply citing a legitimate reason is enough to pass the “good faith” test, then the “good faith”/“bad faith” distinction is an empty one. The Mandel Court might as well have stopped at “facially legitimate” without adding “bona fide.”

None of this is to question the good faith of Judge Bybee. But his interpretation of Mandel strikes me as untenable. It is no “huge leap” to suggest that a decision to exclude aliens from the country can be struck down upon a convincing showing of bad faith. If Mandel means anything, it must at least mean that.


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Marty Lederman

Georgetown Law

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7/14/17  //  Quick Reactions

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Michael C. Dorf

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