From Immigration to Executive Orders to Judicial Review: Miracle or Not?

Posted on Categories Civil Procedure, Judges & Judicial Process, Political Processes & Rhetoric, Public

[The following guest post is from Jacques Condon, the alumni guest blogger for October 2016.] In the movie Die Hard, an enterprising police office played by Bruce Willis thwarts a large-scale robbery attempt (of, all things, bearer bonds). He does it barefoot, and clandestinely. But he also has aid from outside law enforcement which, unwittingly, is also used by the bad guys to their advantage. According to the lead bad guy, played by Alan Rickman, when asked what miracle will crack the safe to expose its riches, he responds: “You asked for miracles, Theo, I give you the F.B.I.”

The Die Hard “miracle” is rolled out for full entertainment value, and, to be sure, even Hollywood miracles that can be traced to non-fiction are sometimes hidden by the misnomers of “Based on a True Story” or “Taken From Real Events,” which allow for artistic license.

Yet this same point — the artistry of miracles — continually shows up in explaining and describing judicial rhetoric.

Nowhere has this been more than in the sound bites surrounding the President’s executive order on immigration. This particular order was multiple pages long, and by its own terms imposed a limited-time ban.

It was also the subject of legal action, State of Washington v. Trump, making it the most recent (and Twitter-trending) action to make headlines. The Western District of Washington had the first crack at review. Others have chimed in on their disagreement/agreement with that review. The case is now with the appellate courts.

The problem, of course, is that this is but one case, and lines to be drawn from it are often barely visible, sometimes jagged, and, despite the rhetoric, rarely “bright-line”.

For instance, take a look at the court’s decision. The court’s task was to decide whether or not to issue a temporary restraining order (TRO) against the order’s enforcement. Both sides filed extensive briefs (with amici chiming in). The court held oral argument. The court issued a 7-page written decision.

But what was perhaps a small miracle in obtaining a TRO became a big one when the court also determined the decision should apply throughout the land. Per the court, the TRO would apply to “at all United States borders and ports of entry”; hence, from the standpoint of those personally impacted by the Order, you had yourself a Die Hard-esque “miracle”.

Of course, lost in the decision, or at least how it was portrayed since then, was the procedure behind it. Indeed, the case itself involves a State (Washington, later joined by Minnesota) suing a federal actor (the President). Despite the parties spending considerable written pages on this point, the court decided legal standing — i.e. that the State could proceed — in a few sentences. Seems like a larger, threshold issue.

(Of note: the limited review may trace to fast action, as the court decided the case at oral argument, and issued its written decision the same-day; the rocket-docket continued with an appeal less than 24 hours later.)

Moreover, the court’s decision, while identifying the injunction standards and the arguments made, is more notable for its concluding order. That is, rather than the decision addressing all issues in the analysis, its conclusion raised other legal, Constitutional issues such as the separation of powers — none of which were extensively reviewed.

Yet from what was there (or not there) you get media-laced sound bites.

Indeed, while not mentioned in the decision, the sound bites are akin to this being an evil “executive order,” particularly from “this” president; but this president was elected per the law, and throughout our country’s history, presidents have often relied on their power as a unilateral executive to accomplish their policy and legislative goals — this president is not the exception to the rule.

Admittedly, there are two sides to a coin and the issues here — ranging from immigration to executive orders — have many a nuance. Yet, the larger point is this: the sound bites reflect more rhetoric than reality.

So what does that mean here? For one, appellate review will place standing front and center, and it will be (as it should) a threshold issue. It was no different in other immigration cases — including my personal favorite and arguably one of the top-10 most important Supreme Court cases of all time, INS v. Chadha, 462 U.S. 919 (1983) (overturning legislative veto), where standing and jurisdiction were all discussed.

At the same time, do not expect standing to be centrally portrayed in media discussion.

In other words, do not expect the media (or Joe Public) to delve into whether Washington has damages under the doctrine of parens patriae — yet, if you care to pull out a dictionary, that is one of the primary issues in the case.

Second, like it or not, the TRO posture is not well-suited for future precedent. There are reviewing standards for a TRO, but it really comes down to a “do I think that person will win” and “has that person met their burden of proof”. In this particular case, there were no witnesses, and no trial documents typical to more mature legal action. The TRO is, as the name implies, was only “temporary”.

And, from a theoretical perspective, issuing a temporary order doubles down on whether nationwide application, itself temporary, was in fact appropriate.

Consider it like this: Washington argued the President’s order harmed its residents, businesses, and families, with the Department of Justice labeling those claims as speculative and generalized; whether these positions are argument, or fact, and “nationwide,” are difficult legal hurdles to overcome.

The point is that, in reality, the court’s decision is not some miracle as found in the movies; instead, the decision is part of a grander system. That system will decide the next step.

Perhaps the court’s decision was wrong. Perhaps parts were right but parts were wrong. Perhaps the court was spot-on. Either way, Article III of the Constitution establishes an independent Judiciary, a Third Branch of Government with the “province and duty … to say what the law is” in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803).

Taking this review to heart, I look forward to reading what the reviewing judiciary says about this case, going forward.

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