“It is emphatically the province and duty of the judicial department to say what the law is.”
“To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, say ‘what the law is‘.”
When the U.S. Constitution was still in its early years, the Supreme Court made a bold claim of ultimate authority to be the final interpreter of what the basic document means. It has held fast to that claim ever since, and it shares that authority – at least to a degree – with the lower federal courts.
This view is illustrated by the two quotations above. The first comes from an opinion of the Supreme Court in 1803, written by Chief Justice John Marshall – the towering figure in all of the court’s history. He wrote that in Marbury v. Madison – an early challenge to the use of presidential power.
The second quotation is from a 2008 Supreme Court opinion, written by Justice Anthony M. Kennedy – probably the most influential member of the court currently. He wrote that in Boumediene v. Bush, upholding a modern challenge to national security action taken by the president and Congress working together.
Such claims of ultimate power to interpret the Constitution help explain why a federal appeals court felt comfortable on Thursday as it second-guessed the constitutional authority of President Trump to issue his sweeping executive order limiting immigration of people from the Mideast as an anti-terrorism policy.
That court did so even though, one day earlier, the President, in a televised speech, had recited the specific words of a 1952 federal law that unmistakably handed to the White House almost unlimited power to control which foreign nationals may enter the country, in order to protect national security. “It couldn’t have been written any more precisely,” the president said, arguing that the U.S. Court of Appeals for the Ninth Circuit had no choice but to apply that law literally to uphold his order.
Meanwhile, lawyers from the Justice Department were arguing in that same court that the 1952 law went so far that it barred the courts even from hearing any challenge to the president’s executive order.
When the Ninth Circuit Court announced its decision on the broadest challenge so far to the immigration restrictions, it did not follow the president’s legal advice or that of government lawyers. In fact, the opinion spent no time discussing the scope of the 1952 law. Instead, it focused on whether the courts had any power to review the president’s authority over immigration and national security policy, whether the claim to authority was based on the Constitution or federal law.
“There is no precedent to support this claimed unreviewability, which runs counter to the fundamental structure of our constitutional democracy,” the opinion said. At that point, it referred to the quotation above in the Boumediene decision.
It then added: “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution of litigation challenging the constitutional authority of one of the three branches. We are called upon to perform that duty in this case.”
Normally, the federal courts – including the Supreme Court – will not reach out to decide a constitutional question if they can base their decision on some other guiding principle. Thus, it might have been expected that, in the immigration policy case, the Ninth Circuit Court might have begun its review by examining the meaning of the 1952 law on which President Trump had based his suggestion on how the case should come out. In fact, some observers who have criticized the Circuit Court’s decision have contended that it should have ruled on whether President Trump was right in his view.
The two states whose challenge was before that court, Washington and Minnesota, had actually contested the Trump immigration restrictions on the basis of both the Constitution and on federal statutes dealing with immigration.
It seems possible, maybe even quite likely, that the three judges on the Circuit Court panel had no quarrel with the 1952 law as a broad grant of immigration control to the president. But, even accepting that the statute did give President Trump wide discretion to fashion an executive order on who may enter the country from Mideast nations, that could not have settled the question of whether such an order might violate the Constitution itself.
That reading of what the Circuit Court considered to be before it suggests that it probably felt that it had no choice but to move directly to the constitutional challenge made by the two states.
The decision, of course, was not a final and binding decision that the Trump executive order is actually unconstitutional; it was limited to whether the states were – at a minimum – likely to win on the constitutional claim when that is decided in a final and binding way.
It is unclear at this point whether the case will now return to a federal trial judge for further review of the states’ challenge, or whether the government will attempt to take the case to the Supreme Court as a kind of preemptive legal maneuver to get the issue settled swiftly.
If the case now moves on to the Supreme Court, as seems quite likely, the Justices would presumably be asked by the administration’s lawyers to accept President Trump’s view that the 1952 law was all that was necessary to validate his policy, and to reject the constitutional complaint.
(This post also appears today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)