Five Ninth Circuit Judges Issue Rare Dissent Rebuking The Panel In Immigration Ruling

by Jonathan Turley, JonathanTurley.org, March 17, 2017

Despite a surprising lack of media attention, the Ninth Circuit saw a relatively rare filing of a dissent in the appeal of the first executive order.  Critics of the order have celebrated the panel decision, though many of us (including opponents of the immigration order) criticized the opinion as poorly written and supported.  Nevertheless, critics have said that four judges in that case ruled against the President. (That is not counting Judge Brinkema in Virginia).  However, the count is now roughly even for the first appeal of the order.  In a surprising move, five judges (including the highly respected Chief Judge Alex Kozinski) filed a dissent to the motion for rehearing. The blistering dissent showed that a significant number of Ninth Circuit judges strongly disagreed with the decision of the panel.  (Some judges may have not approved of the panel decision but did not see the need for a rehearing).  As previously raised by experts, the strongly worded dissent belies the claim that the original executive order was legally unsustainable.  To see this type of vociferous dissent in a withdrawn appeal is  remarkable in itself but it also shows the depth of opposition to the panel’s decision among other judges.

The dissenting judges objected that there is an “obligation to correct” the “manifest” errors of the panel.  It called those errors “fundamental” and even questioned the manner in which the panel reached its decision with a telephonic oral argument.  The dissent raised many of the problems that various commentators have raised, including myself.  The lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority are obvious flaws. (These problems are also apparent in the ruling in Hawaii, though it was based on establishment rather the due process grounds) The dissenting judges refer to the “clear misstatement of law” in the upholding of the district court.  so bad it compelled “vacating” an opinion usually mooted by a dismissed case.

The judges said that the panel simply “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972). Indeed, the panel noted that the panel missed entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977).  In a statement that is particularly probative of the Hawaii ruling, the Supreme Court in Mandel recognized that first amendment rights were implicated by the executive action but found that “when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”

These five judges joined in the analysis of the court in Boston in accepting the rational basis for the President’s actions.   They insisted that “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.”

The opinion has all of the legal analysis that is so conspicuously absent in the panel decision, which dismissed or ignored countervailing case law of the Supreme Court and even the Ninth Circuit.  The panel poignantly noted:

We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.

The only judges to join in a written defense of the denial were the three judges from the panel — Judges William Canby, Richard Clifton, and Michelle Friedland — and perhaps the most liberal member of the Ninth Circuit, Judge Stephen Reinhardt. The original panelists noted that “The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration.”  Reinhardt added a not-so-veiled dig at critics (and likely the President himself): “I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”

It is also worth noting that Bybee clearly indicated the judges — liberal and conservative alike — opposed the attacks by President Trump on judges:

“The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy.”

Here is the opinion: 17-35105 en banc