A few weeks ago we were all wondering what judge on the Ninth Circuit asked for a rehearing en banc with regard to Washington v. Trump (Travel Ban Executive Order I). The Ninth Circuit declined to rehear the case and issued its order on March 15, 2017. It’s still unclear who asked for the rehearing, but Ninth Circuit Court of Appeals Judge Bybee has treated us to a rollicking dissent from the latest order.
You may recognize the name – Jay Bybee. He has been on the Ninth Circuit since 2003, but you probably wouldn’t know him from that. He is instead better known as the Justice Department attorney who signed off on the “torture memos.” These were the writings that established the legal basis for enhanced interrogation under President George W. Bush. Judge Bybee has had a distinguished law career. He was in private practice for three years, a clerk to the 4th Circuit Court of Appeals, a law professor at Louisiana State University and University of Nevada, and an assistant attorney general. Prior to serving on the Ninth Circuit, he had practiced and taught in the areas of constitutional law, administrative law, and civil procedure. This is a background that served him well in this dissent.
It is an odd maneuver to write a dissent from a denial of an en banc hearing, but here is where Judge Bybee proves how smart he is. The panel that allowed the temporary restraining order to stay in place from the district court judge in Washington really messed up. They ignored precedent not only from the United States Supreme Court but also from their home court, the Ninth Circuit. Judge Bybee has succeeded in making it very clear how badly they went off track.
In the dissent, in which he is joined by four other judges, Judge Bybee presents easily discovered precedent to show that executive orders on immigration may only be reviewed with the rational basis test: the President must only show a “facially legitimate and bona fide reason” for the order. The panel ignored the actions of Congress, the Secretary of State, and the Secretary of Homeland Security who had all designated the countries mentioned in the original travel ban order as countries of concern. All designations were from previous administrations. Trump relied on existing law to determine which countries were of most threat to the United States – he did not make this up from whole cloth, unlike the Ninth Circuit panel who denied his appeal. Trump satisfied his duty of showing a facially legitimate and bona fide reason for the ban. The panel is not allowed to go any further.
Other problems with the panel’s denial were that the three judges ignored the statute that grants the president authority to establish immigration policies (they never once mentioned the governing statute), they plunked down Establishment Clause law into the immigration review which is only appropriately used for U.S. citizens’ claims, and they ran roughshod over the separation of powers doctrine and severely undermined the accepted deference due to the executive branch in making policy for national security reasons. Judge Bybee sets forth a persuasive case for vacating the panel’s decision.
So you may be asking, what good does all this do? The original executive order was pulled, this case is dead. Why bother? Well the case is not dead, and more importantly, the Left is waging a war on all fronts and they cannot be allowed to win on any of them, especially in the courts. The second executive order is under attack in Hawaii and other places. Hawaii’s court will be reviewed by the Ninth Circuit at some point and Judge Bybee’s persuasive dissent is on the record and cannot be ignored. If it were to be ignored, that is one more thing that will help convince the public that the Left is the one with the hidden motive. Any future Ninth Circuit panel that reviews this executive order will be under an absolute obligation to address Judge Bybee’s points. From what I can tell they are unassailable.
Judge Bybee laid out the precedent from the Supreme Court in the Mandel and Fiallo cases. He followed with the Din case – a case arising out of the Ninth Circuit that was reversed by the Supreme Court. Then he followed with all of the cases from the Ninth Circuit that had cited both Mandel and Fiallo in making its decisions. The earlier panel mostly ignored or gave short attention to these precedential cases (they are bound to follow the law as laid out in those opinions). This is simply striking – the panel judges are charged with knowing precedent, particularly with regard to their own circuit. They cannot claim ignorance. They willfully ignored binding authority. Judge Bybee has schooled them on Judicial Opinion Writing 101.
The media has not reported much on the dissent. But legal commentators have been quite interested. Check out Jonathan Turley, Legal Insurrection, Reform Club, and Lawfare for more insights and opinions on what the dissent says as well as what impact the legal maneuvering may mean long term. For now, those who believe in separation of powers and the Constitution should be applauding Judge Bybee’s contribution to the record. It could be a major roadblock for future activist courts.