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:

• The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable …. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

(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:

• Judge Gorsuch “handle[d] all OASG terror litigation.”  And in the Bush administration’s brief in Doe v. Gonzales, which Judge Gorsuch “handled,” the administration claimed as follows: “At a fundamental level, the district court’s opinion reflects an unwarranted reluctance to give weight to reasoned judgments of the Executive Branch regarding the risks associated with the disclosures about secret intelligence gathering activities.  To dismiss the carefully considered judgments presented by the government in this case as mere ‘speculation,’ and to replace those judgments with the court’s own conclusion that disclosure would not be harmful, is to make the judiciary rather than the Executive Branch the arbiter of this country’s intelligence gathering needs.  That is a role the judiciary is institutionally unsuited to play.”
• In the Bush administration’s brief in In re Iraq and Afghanistan Detainees Litigation, which Judge Gorsuch signed, the administration stated: “[C]ourts should not undertake the task of balancing individual rights against national-security concerns unless the political branches, in whom the Constitution imposes responsibility for our foreign affairs and national security, have determined that judicial oversight is appropriate.” (Some of these phrases were quoted from a district court decision.)

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:

• The Government compounds these shortcomings by suggesting that the Executive Order’s neutral text is what this Court must rely on to evaluate purpose. [The government brief said:] “[C]ourts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.

Or a similar passage from the District Court of Maryland decision entering a temporary restraining order against the second ban:

• Defendants argue that because the Establishment Clause claim implicates Congress's plenary power over immigration as delegated to the President, the Court need only consider whether the Government has offered a "facially legitimate and bona fide reason" for its action.  In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban …. Such explicit statements of a religious purpose are “readily discoverable fact[s]” that allow the Court to identify the purpose of this government action without resort to “judicial psychoanalysis.”

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:

• [O]ur authority to second guess or to probe the decisions of [the political] branches is carefully circumscribed.
• The Supreme Court has given us a way to analyze these knotty questions …. As the Court explained in Leng May Ma v. Barber, “It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, . . . and those who are within the United States after an entry, irrespective of its legality.”
• Suffice it to say, it would be a huge leap to suggest that [Kerry v. 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.
• As the Court explained in Reno v. American-Arab Anti-Discrimination Committee:  The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat …. and even it if did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy.

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:

• Judge Bybee purports to accept Justice Kennedy’s directive in Kerry v. Din that it is appropriate to “look behind” the government action if there were “an affirmative showing of bad faith.” In the next breath, however, Judge Bybee claims—without any analysis of the extensive evidence indicating that Trump’s EOs were motivated by animus—that it would be a “huge leap” to apply Justice Kennedy’s language here because Din involved a determination made by a consular officer, rather than the President of the United States.  He is willing to so narrowly read Justice Kennedy’s language without any explanation why bad faith would be determinative for a decision made by a consular officer, but not a decision made by the President. 
• Reno v. AADC involved the construction of a “jurisdiction-channeling” statute that altered federal courts’ jurisdiction over petitions for habeas corpus. The statute directed that challenges to deportation orders and deportation proceedings be made in a petition for review, rather than a petition for habeas corpus. The language Judge Bybee quoted from Reno explained why the statute treated challenges to “deportation” differently than other immigration cases.  Reno did not involve any executive action that differentiated immigrants on the basis of nationality or religion.
• Judge Bybee relied on Leng May Ma v. Barber for the proposition that a distinction can be drawn between arriving immigrants and immigrants already present in the United States. But he freely assumes, without explanation, that this distinction means that the government’s power over the former class of immigrants is unlimited, or not subject to judicial review. One does not follow from the other. It’s a total non sequitur.

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.

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