By Prof. Al Mariam
“Fundamental to the work of this court is a vigilant recognition that is it but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with the country’s laws, more importantly, our Constitution.” James L. Robart, U.S. District Court Judge in State of Washington, et al., v. Donald J. Trump, et al. (Emphasis added.)
In February 2017, Americans taught the world the meaning of the rule of law. I mean that in the most literal sense. The American federal judiciary acted unhesitatingly to ensure the executive order of the President of the United States “comports with the country’s laws, more importantly, our Constitution.” President Trump also received a practical lesson on the meaning of the phrase, “the supreme law of the land.”
This commentary on the theme of “civic education” follows up on my commentary last week focusing on President Donald Trump’s January 27, 2017 Executive Order [Executive Order] “Protecting the Nation From Foreign Terrorist Entry Into the United States”. As I lamented in my last commentary, there is great confusion, amazement, speculation and misunderstanding about the Executive Order, the States’ challenges to that Order, the District Court’s temporary restraining order and the Ninth Circuit Court’s denial of the Federal Government’s request for an emergency stay of the temporary restraining order.
I am compelled to deliver this “civics lesson” because I believe that lawyers, particularly those whose expertise is in constitutional law, have a civic obligation to educate and inform the public not only on important and controversial constitutional and legal issues but also in general matters of constitutional law. For the average citizen, the law is a mysterious world managed and operated by lawyers who speak their own language, “lawyerese” or “legalese”. They talk and write in jargon, legal babble, acronyms, double negatives and other such things. Even Shakespeare was so disgusted by the legal talk and capers of lawyers that he issued his famous edict against them: “The first thing we do, let’s kill all the lawyers”. I should like to believe the great bard was joking though the words spoken by “Dick The Butcher” character are undoubtedly unsettling.
I venture to say that most lawyers generally avoid direct involvement in contentious political issues. They prefer to engage the issues in the courtroom. But in the “cyberage” where information is exchanged at light speed and the general public is easily duped by fake news, it is important for lawyers to step forward and defend the rule of law and the independence of the judiciary. Beyond that, there is a great need for lawyers to demystify and unshroud the law for the public. All American lawyers, in one form or another, are required by law to affirm their “support for the Constitution and laws of the United States” and “maintain the respect due to the courts of justice and judicial officers”. I see no better way of supporting the U.S. Constitution and the laws of the United States in the public interest and good than providing civic education to the public on them.
There is no question many Americans and others are perplexed about and do not quite know what to make of Washington v. Trump.
I have talked to many citizens and others who are simply astonished by the “power” of a U.S. District Court to stop the President’s Executive Order “cold”. They ask in total bafflement, “How could a ‘simple’ judge stop the mighty President of the United States?”
I have seen and heard others jubilantly declaring they have “won” and Trump has “lost”. Still, others have told me that the “courts’ interference opens the door” for terrorists to come into the U.S. and wreak havoc. Those who oppose the Executive Order claim it is a thinly-veiled “Muslim ban” and deeply offensive and un-American. I have heard fellow academics criticize the “liberal” courts for exacting a political vendetta on Trump. They say the courts are “power hungry judicial activists” hell bent on advancing their own political and ideological agenda. Others place full faith in the courts’ ability to “finally stop” Trump.
The fact of the matter is that none of these issues is relevant to the court proceedings in Washington v. Trump.
At the current stage of litigation in the case, there are only two straightforward issues before the District and Appeals Courts: 1) Should the States of Washington and Minnesota be granted a temporary restraining order until they have their day in the trial court in their lawsuit against the Government? 2) Should the Ninth Circuit grant the Government’s request for an emergency stay by simply accepting the Government’s Executive Order and verbal assurances, without any evidence whatsoever, as “gospel truth”?
In the trial court, the states of Washington and Minnesota [“States”] sought a “temporary restraining order” (TRO) until the case can be heard and decided after evidence is presented on the merits. The States argued that they are entitled to have their day in court because the Executive Order does “irreparable harm” to their citizens, residents and institutions.
The Government asserts it is entitled to an emergency stay of the District Court’s Order because legal controversies involving immigration and national security do not belong in the courts and that the courts have no power to scrutinize the President in these issues even if he violates the U.S. Constitution. That is what all the legal brouhaha is about.
The District Court granted the States’ request for a temporary stay in the implementation of the Executive Order until they have had a chance to be heard in court with their evidence.
The federal and state courts grant TROs routinely every day. Such proceedings are such a common part of the humdrum of the judicial process that few ever take notice.
The States’ case challenging the Executive Order is in its preliminary stage; indeed the request for a temporary restraining order is the very first step in the litigation. Nothing the District and Appeals court have done ends the case or hands a victory or defeat to the either side. Ultimately, the validity of the Executive order will be decided in the answer to the following question: Does the Executive Order violate the U.S. Constitution and/or Acts of Congress?
I aim to make this commentary a “civics lesson” for my readers and others who may not be familiar with the American constitutional and legal process by examining and explaining the issues surrounding the Executive Order in the hope that they can better appreciate the principle of the rule of law in action in America. It may be easier to talk about the rule of law in the abstract as a philosophical issue or jurisprudential concept. My aim here is to demonstrate how the Executive Order directly and necessarily implicates the rule of the supreme law of the land, the rules of law in the Acts of Congress and the rules of law in the decisions of the Supreme Court of the land.
In delivering this “civics lesson”, I have tried to strip, as much as possible, the legal “mumbo jumbo” which often confuses and turns off those who are not practicing lawyers or academics studying the law. There is always the risk of oversimplification, omission of important details and understatement when one seeks to deconstruct complex legal issues. I provide links to original sources for those who want to delve in specific issues more deeply. Having said that, I have tried to make the discussion is easily digestible and understandable to the lay reader.
A personal lesson in the rule of law
There is no country in the world where the power of judicial review (the power of courts to determine whether lawmakers or executive officers (presidents, prime ministers) is practiced more assertively and successfully than in the United States. When acts of Congress and the actions of a U.S. president violate the U.S. constitution, it is the duty of the courts to review and make pronouncements on their constitutionality.
For over a decade, every single week, I have been teaching and preaching the “gospel” of the rule of law in one form or another in Africa and, particularly Ethiopia. Unfortunately, my decade-long crusade for the rule of law has yet to bear fruit although I have anecdotal evidence that many young Ethiopians have connected to my message.
In April 2012, I tried to explain the role of the “the rule of law in Ethiopia’s democratic transition”. I demonstrated that Ethiopians had an ancient and time-honored tradition of “invoking the divine power of the law”. Indeed, in 1240, Ethiopia adopted the Fetah Negest (Law of Kings) which served as the “supreme law of the land” until 1931 when H.I.M. Haile Selassie granted a new constitution.
In March 2015, my commentary on the need for a “Magna Carta for Ethiopia” was posted on the official website of the Magna Carta Trust established to coordinate the 800th celebration of the Great Charter in the U.K. Though there are many legal codes and constitutions which preceded the Magna Carta, none expressly included the supremacy of the rule of law. In Clause 39 of the Magna Carta, King John agreed to stop the practice of “seizing, imprisoning, dispossessing, outlawing, condemning or committing to prison any free man except by the legal judgment of his peers, or by the laws of the land”. Thus the rule of law was born and the divine power of kings buried.
In October 2015, I sought to give a lesson in the rule of law to a Kentucky county clerk who refused to implement a decision of the United States Supreme Court because her religious beliefs prevented her from following the ruling of the highest court in the land.
I am proud that my voice was included in the celebration of the Great Charter on its 800th anniversary. In that commentary, I tried to explain how an African (Ethiopia) teenager became so enamored with the rule of law nearly one-half century ago that he embarked on a lifelong quest to seek and defend it.
I first came across the U.S. Constitution in 1968 or 1969 at the United States Information Service (USIS) in Addis Ababa. Though the USIS building was a target of student protests from time to time, I managed to use its facilities effectively to learn about the United States. I had a special interest in the law even in childhood. As a teenager, I was quite familiar with the Ethiopian Criminal and Civil Codes and particularly civil and criminal procedure as I explained in my Magna Carta commentary referenced above. It is understandable that I would be interested in the U.S. Constitution along with all of the other things in American culture and literature of the 1960s. There were several things that fascinated me about the U.S. Constitution. First, it was very short and intriguing. It was certainly unlike the Imperial Constitution of H.I.M. Haile Selassie, which dealt almost entirely with the Emperor’s powers and the duties and owed to him by his subjects. Second, I liked the whole idea of “We the people”. It contrasted to “We, the Imperial Majesty.” I found the whole idea of separated powers in three branches of government appealing. H.I.M. Haile Selassie was the sole source of all power in Ethiopia. I liked the Bill of Rights (first ten amendment to the U.S. Constitution), particularly the First Amendment. Suffice it to say that I did the best I could to study the U.S. Constitution on my own.
Now, nearly one-half century later, I have the privilege of defending “the supreme law of the land”, the Constitution of the United States, in the courthouse, teach it in the schoolhouse, apply it in the jailhouse and advocate it in the statehouse. Life is full of ironies.
Temporary restraining orders (TRO) and emergency stays in U.S. federal courts
Legal procedures provide fixed, step-by-step sequence of activities or courses of action in the legal system.
The Federal Rules of Civil Procedure (FRCP) specify the step-by-step activities that must be taken in a variety of legal actions in federal court and provide the applicable rules in accessing federal courts, including obtaining a TRO or an injunction.
Rule 65 of the FRCP and legal precedent set forth the specific requirements which must be met to obtain a temporary restraining order (TRO), a preliminary and/or permanent injunction in the U.S. District Court. A TRO puts a legal dispute in a holding pattern for a short time until the court conducts a hearing or a trial on the evidence. The party seeking a TRO must convince the judge that s/he or she will suffer immediate “irreparable harm” unless the order is issued. If the judge is convinced, s/he will issue the TRO immediately, without informing the other parties involved or holding a hearing. A preliminary injunction is a court order which restrains a party from doing something or compelling that party to do something until the case has been decided, in which case a permanent injunction could be granted.
The Federal Rules of Appellate Procedure (FRAP) and legal precedent provide the step-by-step actions which must be taken to obtain an emergency stay (prevent the District Court’s TRO from taking effect). Rule 8 of the FRAP provides the requirements for an emergency stay in the U.S. court of Appeals.
The challenge to the Executive Order by the States of Washington and Minnesota
The States’ Case
The States’ lawsuit against the Federal Government [“Government”] challenges the constitutionality and legality of the sweeping provisions of the Executive Order which changes policies and procedures by which non-citizens may enter the United States. In the District Court, the States specifically sought a TRO to stop implementation of three provisions of the Executive Order until a full hearing is held:
1) the 90-day suspension of entry of aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen; 2) the 120-day suspension of the United States Refugee Admissions Program, and when that program is resumed to give priority to claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality, and 3) indefinite suspension of entry of all Syrian refugees.
The States in their Complaint allege that the Executive Order is unconstitutional because it violates:
1) the First Amendment to the U.S. Constitution by preferring one religion over another since it gives special status to members of minority religions coming from countries with a majority religion.
2) the due process clause of the Fifth Amendment by denying re-entry to certain lawful permanent residents and non-immigrant visa holders without constitutionally sufficient notice and an opportunity to respond.
3) the Immigration and Nationality Act (INA) which prohibits discrimination on the basis of race, nationality, place of birth, or place of residence when issuing visas. By suspending all immigrant and nonimmigrant entry into the States by individuals from seven countries, the Complaints alleges the Executive Order illegally denies refugees facing persecution an opportunity to apply for asylum and withholding of removal as required by the INA.
4) the Foreign Affairs Reform and Restructuring Act which prohibits the involuntary return of any person to a country, particularly from the 7 named countries, where there is a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
5) the Religious Freedom Restoration Act which prohibits the federal government from substantially burdening the exercise of religion, even if the burden results from a rule of general applicability, and
6) the Administrative Procedure Act which requires federal agencies to conduct formal rule-making before taking action that impacts substantive rights.
The Government’s Case
The Government’s fundamental position in defending against the States’ lawsuit is that 1) the States have no legal capacity to sue the Government in matters involving immigration and national security, and 2) the U.S. District Court does not have the constitutional or statutory (authorized by Congress) power to prevent enforcement of the Executive Order.
The Government further argued that 1) the District and Appeals Court must show substantial deference (respect and avoid getting involved) to the immigration and national security policy determinations of Congress and the President and avoid involvement, and 2) even more sweepingly, the President has “unreviewable authority to suspend the admission of any class of aliens” even if those actions potentially violate constitutional rights and protections. Moreover, the federal courts must never doubt the President’s good faith in making immigration and national security policies and necessarily assume the President’s Executive Order as legitimate on its face. Simply stated, when it comes to immigration and national security cases, the Government claimed that President cannot be haled into court to account for his actions or omissions.
The Government denied states have the right to sue the federal government on behalf of their citizens (parens patriae) in immigration matters or on the basis of “hypothetical or speculative” economic harm. The Government challenged the District Court’s TRO on two grounds. First, the TRO is too broad and improperly extended its applicability beyond lawful permanent residents to include aliens who have no legally protected right to travel into and out of the United States. Second, the TRO should not apply nationwide and should be limited the States of Washington and Minnesota. The Government denied the States’ allegations of religious discrimination arguing that the Executive Order has a secular, not religious, purpose, is neutral on its face, does not involve entanglement with religion or officially prefer one religion over another.
The District Court’s Order
In granting a TRO to the States and stopping implementation of the Executive Order nationwide, the District Court made two preliminary determinations: 1) the Executive Order was causing ongoing harm on large numbers of people to the legal disadvantage of the States and 2) the States were likely to be able to prove the Executive Order was unlawful.
The District Court denied the Government’s request to stay (go into effect) the TRO until they file an emergency appeal in the Ninth Circuit Court of Appeals [“Ninth Circuit”], and directed the parties to prepare for a hearing on preliminary injunction which, if granted, could stop implementation of the Executive Order until a final determination is made on the merits of the case.
The Government immediately filed an emergency stay request in the Ninth Circuit to suspend the District Court’s TRO from going into effect until their appeal is heard. That emergency request was denied and the parties were ordered to file their briefs (legal arguments and supporting evidence and authority) within two days.
The Ninth Circuit Appeal
For the Ninth Circuit to grant the Government’s emergency stay of the TRO, the Government must necessarily show that it is likely to succeed on the merits of the case and that it will be irreparably harmed without the immediate stay. The Government’s case could be bolstered if it could also show substantial harm to other interested parties and adverse impact on the public interest.
After hearing arguments in a hearing conducted by telephone, a panel of the Ninth Circuit rejected the Government’s request for an emergency stay of the TRO and let the case proceed in the District Court in normal fashion.
The Ninth Circuit agreed with the District Court’s finding that the Government has not met its burden of showing likelihood of success at trial at the present stage of the litigation. The Government failed to produce any evidence showing an emergency stay is necessary to avoid irreparable injury to the States. The Government also produced no evidence that any alien from the seven named countries has caused a terrorist attack in the United States. The Government produced no evidence to counter the States’ argument that the District Court’s TRO “merely returned the nation temporarily to the position it has occupied for many previous years.” Denial of the Government’s request for an emergency order does not prevent the Government from pursuing all of its claims in the District Court proceedings.
In denying the request for an emergency stay, the Ninth Circuit addressed a number of important issues raised by the Government. The Court held that the Government’s argument that the federal courts do not have the power to review the actions of the President for constitutionality is so bizarre and without precedent that it runs “contrary to the fundamental structure of our constitutional democracy”. The Government’s blanket claim of “unreviewability” has been rejected by the U.S. Supreme Court; and assuredly, the actions of the political branches are “subject to important constitutional limitations”.
The Ninth Circuit held that even a law that appears religiously neutral on its face, in applicability it could send “ the ancillary message to ... nonadherents ‘that they are outsiders, not full members of the political community.’” In light of the presidential candidate Trump’s previously declared intention to implement a “Muslim ban”, the Executive Order manifestly appears intended to disfavor Muslims and improperly discriminate against them because of their religion. “Such evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
The Ninth Circuit indicated that there are two competing interests must be weighed in deciding whether to issue an emergency stay order: the public’s compelling “interest in national security and the ability of an elected president to enact policies” on the one hand and the public’s “interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.” Balancing these competing interests, the Court found no justification to issue an emergency stay.
The Current status of the Washington v. Trump
The litigation in the States’ case so far has established two facts: 1) The States have met their procedural requirements for “standing” to sue the Government. 2) The States have met their procedural requirements to obtain a temporary restraining order. The States have shown “standing” by making sufficient competent allegations of loss or damage to a legally protected interest. The States have also succeeded in asserting “standing” on the basis of parens patriae (the state governments claiming to be the legal protectors of their citizens who cannot protect themselves). The District Court judge acted properly within his “judicial discretion” (not bound by strict rules or precedent) in granting the TRO.
The “States” did not “win” the “case”. President Trump did not “lose” the case.
The case is in its preliminary and elementary stage and will be decided only after both side have an opportunity to present their evidence and arguments in the District Court. At this stage of the litigation, there are only mere allegations and unchallenged evidence supporting those allegations. The States have yet to produce proof to support their allegations of harms to their proprietary interests traceable to the Executive Order including significant adverse impact on their public universities’ teaching and research missions, faculty and students who cannot travel for research, academic collaboration, or for personal reasons at a contested hearing.
Judicial Review: The Power of the Rule of Law
Discrimination in immigration to the United States is part of the fabric of American politics and society as I demonstrated in my commentary last week. Indeed, one the 13 reasons (#7) for the American Declaration of Independence in 1776 was King George III’s (George William Frederick) discriminatory refusal to allow immigration into the colonies:
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. (Emphasis added.)
“King” Donald Trump today claims that he can discriminate and impose a “Muslim ban” by executive order and cannot be reviewed by the courts for doing so.
The lesson in the rule of law in Washington v. Trump for the world is judicial review.
Judicial review is the power American federal (and state) courts have to examine the legislative and policy actions of the political branches (Congress, President) for constitutionality.
Article VI of the U.S. Constitution provides:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…
The question is who decides when “the supreme law of the land” is violated.
In 1803, the United States Supreme Court provided the definitive answer with breathtaking breadth:
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
In Washington v. Trump, the Government made the brazen and audacious claim that the President’s Executive Orders in immigration and national security cannot be reviewed by federal courts even if those orders violate the Constitution. The Ninth Circuit characterized the Governments claim of “unreviewability” so bizarre that it declared it “contrary to the fundamental structure of our constitutional democracy”.
I know of no country in the world where an independent judiciary unafraid of political retaliation and retribution could stand up for the rule of the supreme law of the land against assaults by the political branches than the United States. The idea of the rule of law predates the establishment of the American Republic and its Constitution. Clause 39 of the Magna Carta is the preeminent step in the establishment of the rule of law. But the great innovation in the rule of law in America is the unique combination of judicial independence and judicial supremacy created in the Constitution in the authoritative and definitive interpretation and application of the “supreme law of the land”.
The U.S. legal system has many flaws, too many to count. Even the U.S. Supreme Court is a flawed institution; indeed it has become a microcosm of American society with all its divisions and contradictions. In its history, the Supreme Court has made legally and morally indefensible decisions which allowed slavery to continue and American citizens to be held in detention without due process of law for years. But the Court has also commanded the legal and moral high ground by rooting out legalized discrimination and affirming individual liberties. With the federal courts, the great strides in the protection of civil rights and civil liberties would have been very unlikely.
But the American Judiciary’s independence and commitment to the rule of law is second to none. For over two centuries, it has performed its functions free from overt political pressures although from time to time it has faced political threats.
There can be no rule of law where there is not an independent and fearless judiciary willing to stand up for the rule of law. It is unimaginable to me that the ultimate interpretation of “the supreme law of the land” should be left in the hands of elected officials who sway with the political winds and cater to demagogic exhortations. Democracy is majority rule but in America majority rule is tempered by the Bill of Rights which protect the individual and groups not in the majority form the whimsical and arbitrary actions of the majority. The majority in Congress could pass a law and implement a “Muslim ban”, but that law would have no effect because the First Amendment to the U.S. Constitution dictates with emphatic certainty that “Congress shall make no law respecting an establishment of religion ...”
I believe that America, despite its many problems, remains more successful than most societies because of its commitment to the rule of law. Even President Trump who vilifies federal judges calling them “so-called judges” and castigating them with abusive epithets, accepted their judgment and conformed his conduct to the rule of the supreme law of the land as interpreted by the courts. It is heartening to hear Mr. Trump say, “See you in court” after the Ninth Circuit declined to grant his request for an emergency stay.
I am shocked but also amused by the Government’s claim that the Executive Order cannot be reviewed by courts for constitutionality. Such views are not uncommon among certain groups that claim allegiance to the notion of original intent and have made it fashionable to attack and demonize the courts by self-righteously wrapping themselves with the parchment of the Constitution.
It is perplexing to me how Trump could issue his order without “vetting” it and at least consulting the Republican leadership in Congress. “House Speaker Paul D. Ryan’s political team sought to reassure donors and other supporters that the temporary ban on travelers from seven majority-Muslim countries does not amount to a ‘religious test.’”
Perhaps it is the sign of the times that a president who is clueless about the Constitution should be entrusted to protect, defend and preserve it.
Goethe remarked, “Nothing is more frightful than to see ignorance in action.” Were he alive today, I do not doubt he might have said, “Nothing is more frightful than to see ignorance in the White House carrying a black briefcase carrying codes.”
It is frightening to hear the President of the United States proclaim, “We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace … we can sue them and win money instead of having no chance of winning because they’re totally protected.” Newspapers can be sued for libel only if they report with knowledge of the falsity of their reports or in reckless disregard of whether the story was false or not. It is equally shocking to hear the President of the United States explain, “So we can’t do waterboarding, but they can do chopping off heads, drowning people in sealed cages? You have to fight fire with fire.”
If Trump was making these and many other similar statements out of ignorance, one can be hope against hope that in time he could be disabused of his ignorance and attain some degree of constitutional enlightenment. The downright frightful fact is that he simply does not give a damn.
In nearly three decades of teaching and practicing law, I have reluctantly come to realize that the average citizen generally not only lack an elementary familiarity with principle of the rule of the supreme law but also tend to be hostile to the very principle of judicial supremacy and independence whenever the courts issue unpopular decisions. This is perhaps the most compelling reason for lawyers to engage in civic education aimed at enhancing the “constitutional and legal literacy” of the public.
One of the principal lessons to be learned from the Trump presidency in action is the existential threat to our constitutional democracy. Now is the time for all good lawyers to come to the aid of their Constitution and country.