Six weeks ago, when I retired from the Appellate Staff of the Department of Justice after 32 years of service, I thought I was leaving the place in good hands. Experienced career attorneys remained and incoming political appointees, conservative, but thoughtful lawyers, many from the distinguished law firm of Jones Day, were arriving daily. This vital institution would continue and perhaps even thrive under the idiosyncratic new president.
I was wrong.
The president’s bumbled handling of his Executive Order banning travel to the United States of individuals from seven selected countries and the department’s stumbling in court to defend the lawfulness of that Order have cast doubt on the credibility of both. None of this had to happen and it could still be remedied if wiser heads prevail.
Apparently, the Order was issued without the usual vetting provided by the Justice Department and the Department of Homeland Security, the agency charged with implementing the Order. Consequently, the weekend following the Friday on which the Order came out was one of chaos and confusion in airports in the United States and around the world. The government itself seemed confused over whom the Order was directed, and whether holders of green cards or other lawful permanent residents were banned from reentering the country. According to the State of Washington, which filed a federal lawsuit in Seattle to temporarily stop the ban, the government changed its mind five times over this critical issue.
The federal judge in Seattle sided with the State and issued an injunction temporarily barring the implementation of the Order. He held that the State was likely to prevail on the merits at the end because the Order appeared to violate the Due Process and Equal Protection Clauses, as well as the Establishment Clause of the United States Constitution.
The government took an immediate appeal to the Court of Appeals for the Ninth Circuit asking that court to stay the district court’s injunction so that the travel ban could be effectuated. At the time, the Department of Justice must have known that it faced an uphill battle because the Ninth Circuit is the most liberal court of appeals in the nation and would likely be sympathetic to the plight of foreign refugees. Nevertheless, for the hearing before the Ninth Circuit, the Department sent a very smart and capable, but lower level official, who was a last minute substitute for higher ranked officials, and who, as a result, was woefully unprepared.
The government continued to drop the travel ban bar by arguing at the outset that the court before whom it was arguing really had no business being there. In other words, the Justice Department argued that the president’s Order was not reviewable at all by a federal court. This, of course, is not something a federal court likes to hear. And it is wrong. Chief Justice John Marshall stated long ago in 1803 that “it is emphatically the providence of the judicial department to state what the law is.” It is true that courts generally accord great deference to the president in matters affecting national security and immigration. But the government wasn’t asking the court to defer. It was asking the court to just get out of the way. At the end, the court of appeals rejected this unprecedented notion stating it it “runs contrary to the fundamental structure of our constitutional democracy.”
Most importantly, the government could not explain to the court in a credible manner why it was in such a hurry to implement the ban. It had no evidence in the record that anyone from the seven selected nations had ever carried out a terrorist attack in the United States. While the travel ban was merely meant to be a 90-day pause in the immigration process, during which time the government would develop more stringent standards for vetting foreigners seeking entry to the United States, the government could not explain why it could not go forward with its 90-day review process while the present vetting procedures remained in place.
Three days after hearing argument, the Ninth Circuit issued a lengthy opinion, rejecting every argument presented by the Department of Justice, upholding the decision of the district court, and further preventing the travel ban from going into effect. It was a humiliating defeat for the Justice Department and the new Trump administration.
While all this was going on, the Commander-in-Chief continued to send missives via Twitter directed this time at the federal judiciary itself. President Trump called the district court judge who issued the initial stay a “so-called judge” and called the proceedings before the Ninth Circuit on appeal “disgusting.” Even President Trump’s own nominee to fill the vacant seat on the Supreme Court, Judge Neil Gorsuch, found the president’s remarks to be “disheartening” and “demoralizing.” I can attest, as someone who frequently argued before the United States courts of appeals, that “dissing” the judges is not a particularly smart or helpful move.
Now the Trump administration is contemplating whether to take the case immediately to the Supreme Court where, with Justice Scalia’s seat still empty, a likely 4-4 tie would leave the court of appeals’ judgment in place blocking the travel ban for the immediate future. Meanwhile, dozens of other cases have been filed throughout the country challenging the travel ban under the same and/or different theories raised in the Seattle case. The result is likely to be a conflict among the courts and the courts of appeals and more chaos in the air and on the ground in the days and weeks ahead.
As recently suggested, President Trump should simply withdraw his flawed Executive Order and redo it with proper consultation by all concerned government agencies, and appropriate notice to those effected. A well-thought out Order could be framed that would withstand constitutional challenge. Sooner or later, such recourse will be the only course available to the Trump administration. It is the job of career attorneys at the Justice Department to defend the current administration’s policies in the courts. Those policies change with changing administrations and often may differ dramatically from the personal views of the attorneys. However, it is also the moral responsibility of all attorneys to speak truth to one’s client, even powerful ones. As the ancient Sage said: “if not now, when?”
* * *
Steve Frank recently retired from the Department of Justice, where he served for thirty-two years, and briefed and argued over one-hundred cases in the federal courts of appeals.