//  6/7/17  //  Commentary

Last week, the United States filed its certiorari petitions and stay requests in the Supreme Court in the entry ban litigation. And Texas recently filed an amicus brief in support of the United States. The brief argues that the President’s entry ban is lawful, and it’s on behalf of Texas and several other states (Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia), as well as the governor of Mississippi.

They should be ashamed of themselves. Not for filing the brief, but for what they put in it—an argument that is so obviously wrong “many law students have spotted it.” (Frankly, the argument is so wrong, we should clarify that we do not harbor any disdain toward law students.)

The argument is framed in terms of a doctrine (“Youngstown”) that does exist (we’ll give them that much). But the doctrine on which they hang their hat has zero relevance to the claims at issue in the entry ban litigation. Texas’s argument is, at bottom, that the entry ban is entitled to substantial amounts of deference (and more deference than the courts gave it) because Congress authorized the President to create the entry ban.

That’s irrelevant to the claims in the entry ban litigation. The claim in the entry ban litigation is that the entry ban violates the First and Fifth Amendments. Those amendments apply to Congress; they apply to the federal government as a whole. Congress can’t authorize the President to violate the First Amendment. Even if Congress attempted to do so, that wouldn’t change any of the legal analysis about whether the action that the President took did in fact violate the First Amendment. That analysis doesn't change based on whether the President's actions were pursuant to a statute or not.

Look at it this way: When Congress passed the Sedition Act in 1789, it criminalized making false statements that were critical of the federal government. Congress passed a law, and it authorized the President to arrest and prosecute individuals for criticizing the federal government. But the existence of the Sedition Act didn’t make the resulting arrests or prosecutions any more, or any less constitutional.

The same is true for the claim in the entry ban litigation. The challengers’ claim is that the entry ban violates the First Amendment because it disfavors Muslims, and was enacted based on animus toward Muslims. Congress can’t authorize the President to do those things.

We’ll repost our analysis of this issue below, which we wrote when this argument was first floated as a defense of the entry ban. Before we do so, a note of caution: When we wrote the original post, we were told (by several people whom we admire and respect) that perhaps this post wasn’t even worth writing, because the argument we were rebutting was so silly. It’s worth pausing to consider whether this argument’s appearance in the state attorneys’ general amicus brief is because so much of our legal system is being unsettled, or because this is 2017, or because of some other reason. Whatever the reason, however, it’s a shame.


Excerpted Original Post Below:

In Washington v. Trump, the Ninth Circuit Court of Appeals upheld a temporary restraining order against Executive Order 13769, the Trump Administration’s first ban on travel from seven Muslim-majority countries. The court of appeals determined that Washington State was likely to succeed in its due-process challenge to the statute, though the court made no substantive comment on Washington’s claim of religious discrimination. The Trump Administration elected against seeking Supreme Court review, and the ban remained enjoined until it was withdrawn by the Administration’s second travel ban in March. But in a series of blog posts that the Texas Law Review elected to reprint in its online companion, Professor Josh Blackman of South Texas College of Law criticized the Ninth Circuit’s opinion on grounds we find curious.

Blackman quotes with approval a tweet written by the President as he was watching Morning Joe.  The tweet criticized the Ninth Circuit for not citing 8 U.S.C. §1182(f) in its decision. Section 1182(f) is, in the view of its enthusiasts, a Congressional authorization to the President to deny anyone entry to the country for any reason at all. The “sentiment” of Trump’s tweet, affirms Blackman, is “absolutely correct.”

One of us has already written at some length why Trump and Blackman’s shared understanding of the details of federal immigration law is mistaken, as have many others. Indeed, there is a serious question whether section 1182(f) even authorizes the kind of exclusion here—namely, an exclusion that may be arbitrary, unsupported by evidence, and impermissibly motivated. But that is not what we found curious about the criticism.

Let us imagine that Blackman is right, and that Section 1182(f) means what he and Trump think. According to Blackman, had the Ninth Circuit engaged in a “more careful study of the statutory scheme,” it would have “radically altered the panel’s constitutional calculus.” (Emphasis ours.) Radically? Recall that the Ninth Circuit concluded the travel ban likely violated the Due Process Clause of the Fifth Amendment—which is a restriction on the federal government, including Congress. What radical alteration does Blackman have in mind?

It matters, says Blackman, because of Justice Jackson’s “canonical concurring opinion” in Youngstown Sheet & Tube Co. v. Sawyer, which contains (he says) a “timeless lesson” that whether a President acts pursuant to Congressional authorization “informs the exactness of judicial review”—i.e., how closely courts scrutinize the President’s actions. The Ninth Circuit, says Blackman, “elide[d] Justice Jackson’s framework,” which rendered its decision a “comedy of errors.” Consider us …. unpersuaded.

Justice Jackson’s concurrence in Youngstown divides exercises of Presidential power into three categories:

  • Zone 1, the “zenith,” where a President acts pursuant to a Congressional authorization;
  • Zone 2, the “twilight” zone, where Congress has said nothing relevant to the President’s actions; and
  • Zone 3, the “nadir,” where a President acts contrary to Congress’s wishes.

In other words, this is a framework about the relationship between the President and Congress. It is true that, in Justice Jackson’s words, in what we have called Zone 1 the President possesses all the authority “that Congress can delegate.” For an act to be unconstitutional under those circumstances, it must be the case that “the Federal Government as an undivided whole” lacks the power to do what is done.

As it turns out, however, it is often the case that the federal government (as “an undivided whole”) does lack the power to do something—and in such a circumstance, Youngstown has nothing to say. In fact, our Constitution contains an enormous number of prohibitions of exactly that character, the study of which occupies the bulk of most constitutional-law classes. Consider an example: Imagine that Congress passed a statute saying “the President may forbid the publication of lightly edited blog posts in the Texas Law Review,” and the President does so immediately by executive order. Is that in Youngstown Zone 1? Would Blackman argue that it should enjoy “the strongest presumption of constitutionality?” Should the Fifth Circuit carefully avoid the error that Blackman says the Ninth Circuit made: “[applying] strict scrutiny?”

No. No counseled litigant would challenge censorship on that basis—i.e., challenge the censorship under Youngstown. Instead, the argument would be that the President’s censorship violates the First Amendment, which prohibits officials from abridging the freedom of speech, or of the press.  And the Youngstown framework does nothing to answer that question.  The First Amendment would prohibit the President from censoring speech even if Congress passed a statute in 72-point font begging him to do it. Courts wouldn’t review that First Amendment challenge any differently than they would if the President acted alone.

(Or imagine Congress enacted a statute imposing a tax penalty on people who do not have health insurance. Imagine further that the President proceeds to collect such a penalty. Is that in Youngstown Zone 1? Did it change the constitutional analysis? In the debates over the Affordable Care Act’s legality, we never heard about it, if so.)

But this is precisely the nature of the claim in Washington v. Trump. The Fifth Amendment forbids the federal government—all of it—from depriving a person “of life, liberty, or property, without due process of law.” The First Amendment forbids Congress in particular (and, as a corollary, the President) from making a law “respecting an establishment of religion, or prohibiting the free exercise thereof.” The question before the Ninth Circuit was whether the Administration’s travel ban did those things. Of what relevance is Youngstown to that? None.

So, no. Courts don’t need to address the Youngstown framework, or pause to consider whether there are any statutes authorizing or prohibiting the President’s actions, when they address a claim that the President has violated an individual’s rights, or a particular amendment to the Constitution. If the rule is that every constitutional case involving the President must be slotted into one of the Youngstown zones—perhaps it can go in the “Standard of Review” section?—then fine, fine; the Ninth Circuit made a mistake.  On the next go-round, perhaps they should begin by saying that Hawaii v. Trump (or the next iteration of Washington v. Trump) is a case that falls in “Youngstown Zone Zero,” where we ask the antecedent question of whether this framework even applies, and find that the answer is no.

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