One meme that has emerged in some of the pro-Gorsuch commentary is the suggestion that a Justice Gorsuch will be good for the separation of powers. The claim rests on Judge Gorsuch’s well-publicized criticism of a doctrine (Chevron) that gives the executive branch authority to interpret ambiguous federal statutes.
But Judge Gorsuch’s willingness to question Chevron hardly means that Judge Gorsuch will question all expansive assertions of executive authority. Rather, as the New York Times and Jen Daskal at Just Security have explained, Judge Gorsuch’s time in the executive branch suggests he may be something other than the executive-power-skeptic his defenders make him out to be: In his time in the Bush administration, Judge Gorsuch was both a proponent and an architect of aggressive uses of executive power, particularly in the name of national security, and he also defended very limited (if not non-existent) judicial review of executive power.
If Trump is to be believed (never a sure thing), then it is very possible that this round of Muslim-travel-ban litigation will go to the Supreme Court. And a Justice Gorsuch will likely be on the Court in time for that case, for two reasons. First, Trump can slow pedal his appeals (despite claims of an urgent national security interest). And second, Senators Grassley and McConnell seem intent to make up for lost time on the nomination of Merrick Garland by quickly pushing through Judge Gorsuch’s confirmation. It is therefore helpful to consider how Judge Gorsuch’s positions during his time in the Bush Administration stack up against the recent judicial decisions regarding Trump’s executive orders (“EOs”) banning travel from several Muslim-majority countries.
A comparison between judicial decisions invalidating the EO and Judge Gorsuch’s executive branch positions gives no reason to think that Judge Gorsuch would seriously question the constitutionality of Trump’s EO. If anything, it indicates the opposite. All of the judges who have found some constitutional defect with the EO have looked beyond the executive’s bare assertion of a “national security” rationale. Yet nothing in the positions that Judge Gorsuch took when he served in the Bush administration suggest he would do that as a judge. Rather, his positions closely resemble those of Judge Bybee on the Ninth Circuit, who has indicated he would likely uphold Trump’s EO (and whose views, like those of Judge Gorsuch, may be heavily influenced by his personal experience in the Bush administration, where he advocated for aggressive uses of executive power in the name of national security).
Moreover, in the decisions that have concluded there is likely a constitutional defect with either of the two EOs, courts have recognized that the travel bans differ from the “ordinary case” in which judges review a claim of executive authority. That conclusion is eminently reasonable, as severalcontributors on this blog have explained at greater length. The case, after all, involves an administration that baldly, repeatedly, and publicly lays out the “true” purpose of the EO. (President Trump’s promise to ban Muslim immigration is still on his campaign website, for pete’s sake!) But invalidating the EO requires courts to appreciate that the extraordinary record of an intent to discriminate in this case is not defeated by the executive’s bare—literally bare, as DHS has explained—assertion of “national security.” There is no inkling that Judge Gorsuch would do such a thing.
Judicial Review of “Executive Authority” Claims Premised on National Security
In order to review the legality of the EO, judges have had to reject the administration’s argument that courts lack the constitutional authority to review the President’s immigration-related actions taken in the name of national security.
Consider this excerpt from the Ninth Circuit’s decision upholding the temporary restraining order against the Trump administration’s first ban on travel from several Muslim majority countries:
(citations omitted). The federal district court judges who blocked Trump’s second EO reached the same conclusion.
Compare this with the following statements by Judge Gorsuch (or his employer) during his time in the Bush administration:
These statements do not sound like they’ve come from someone who will reject (or even seriously doubt) the Trump administration’s claim that federal judges lack the authority to review executive decisions that touch on immigration and (purportedly) national security.
“Deference” Does Not Equal “Abdication”: The Public Record Surrounding the EO Makes This Case Exceptional and Unique
Several Supreme Court cases have emphasized the need for courts to defer to the executive branch, particularly in the area of national security, and have directed courts to accept “facially legitimate” and “bona fide” justifications offered by executive officials. The courts that have concluded Trump’s EO is likely unconstitutional have reasoned that the record in this case is sufficient to overcome the general deference afforded to the executive branch, and is sufficient to indicate that the administration’s justifications for the travel ban are not legitimate or in good faith.
For example, consider this passage from the District Court of Hawaii decision entering a temporary restraining order against the second ban on travel from several Muslim majority countries:
Or a similar passage from the District Court of Maryland decision entering a temporary restraining order against the second ban:
Compare these statements with those of Judge Bybee of the Ninth Circuit, who wrote a dissent from the court’s decision not to grant en banc review of the Ninth Circuit panel decision regarding the first EO:
Judge Bybee’s dissent is true so far as it goes. But that’s about it. The dissent illustrates how a judge with an expansive, if not limitless, view of national-security-related executive power can and will limit Supreme Court decisions that allow for judicial review of executive authority. (And the documents released to the Senate suggest that Judge Gorsuch is exactly such a Judge.) These judges purport to accept the possibility of a truly exceptional case where deference to the executive might run out—but, when the rubber hits the road, they never find such a case to exist in practice.
Consider the way that Judge Bybee construes each of the three Supreme Court cases discussed in his dissent:
And while it is true, of course, that judges’ authority “to second guess or to probe the decisions of [the political] branches is carefully circumscribed,” that principle doesn’t explain what courts should do when there is an extensive, already-public record regarding the President’s motivations.
Our point is not to defend our reading of any of the three cases, Din, Reno, or Leng May Ma. That said, we feel pretty good about our reading of Din, in part because of another case Judge Bybee cited, Fiallo v. Bell, which applied the “facially legitimate” and “bona fide” standard from Din to high-level policymaking. We also feel pretty good about our reading of Reno in light of, well, Reno itself. Jennings v. Rodriguez will address the extent of any distinctions between non-citizens arriving in the United States and non-citizens who are already present in the United States.
Fundamentally, though, our point is that Judge Bybee extrapolates an aggressive principle of deference to the executive by generalizing statements embodying that principle far, far beyond the specific facts of the cases in which those statements were made. But he is completely unwilling to do the same—and in fact he does the opposite—for any statements in precedent about federal judges’ review of executive action, or the possibility that there will be “bad faith” or “implausible” executive justifications.
This raises the question: Which camp does Judge Gorsuch fit into—the one that is willing to say a case where the President has openly announced his desire to exclude Muslims from the country might be a case of “bad faith”? Or the one that will reflexively defer to the executive’s claims of national security and expansively read statements that urge general deference to the executive?
Judge Bybee’s approach to executive power may have been informed by the experiences he had during his tenure in the Justice Department. When he served in the Bush administration, Judge Bybee took aggressive positions regarding the scope of executive power. He argued in the infamous “Bybee memo,” for instance, that prohibitions on “torture” included only actions that led to the kind of physical pain that accompanies “organ failure, impairment of bodily function, or… death.” The Bybee memo also argued that executive officials could not be prosecuted under the statutes prohibiting torture. Why? Among other reasons, Bybee stated that a “government defendant may also argue that his conduct of an interrogation, if authorized, is justified on the basis of protecting the nation from attack”—in other words, because the official could claim that torture was necessary to reveal information.
The New York Times and Daskal discuss many of the instances in which Judge Gorsuch advocated for aggressive and expansive understandings of executive power, which we will not regurgitate here. But some of the positions taken by Judge Gorsuch during his tenure in the Bush administration are strikingly similar to the positions that Judge Bybee took. For instance, he added a notation that torture works (page 2). And he added a big “X” next to whether the administration should apply the Geneva protections to enemy combatants and persons detained in connection with the “war on terror” (also on page 2). (The Bush administration took the position in the Supreme Court that the protections in the Geneva convention did not extend to enemy combatants.)
Judge Gorsuch’s views on executive power, like Judge Bybee’s views, may be informed by the positions he took during his tenure in the Bush administration. While at DOJ, Judge Gorsuch adopted arguments that resemble Judge Bybee’s, and Judge Bybee has indicated he would uphold the Trump travel ban.
So again, we pose the question: Does Judge Gorsuch sound like a judge who will agree with Judge Bybee that judges cannot look beyond the executive’s claim of national security and the text of the EO? Will he read the principle of judicial deference to the executive as broadly as possible, and extend that principle well beyond the facts of the cases in which it has been invoked? Or does Judge Gorsuch sound more like the judges who have been willing to acknowledge that the EO litigation involves an unprecedented public record that disproves the executive’s claims of national security? Will he be the kind of judge who is able to recognize a case that falls within the exceptions for “bad faith” or “implausible” justifications when he sees one?
Some of Judge Gorsuch’s defenders, by suggesting he is a skeptic of executive power, imply he may be the latter. But there is far greater reason to worry that he is, in fact, the former.