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Dissents in State of Washington, et. al., v. Donald J. Trump, et. al.

Dissenting Opinions

On Friday, the Ninth Circuit released three separate dissenting opinions in Washington v. Trump. Judges Jay Bybee, Alex Kozinski, and Carlos Bea authored the dissents. At least four judges—two of the dissents’ authors and Judges Consuelo Callahan and Sandra Ikuta—joined each of the three dissenting opinions.

Judge Bybee repeatedly cited the principle of judicial restraint in the areas of immigration and national security policy.

  • “We are judges, not platonic guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress.”
  • “The President’s actions might have been more aggressive than those of his predecessors, but that was his prerogative.”
  • The Ninth Circuit’s “fundamental error” was ignoring case law which clearly establishes that “when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.”
  • The Court’s failure to give deference on immigration policy to the “President when making a broad, national security-based decision … stands the separation of powers on its head.”
  • Case law “is devastating to the panel’s conclusion that we can simply apply ordinary constitutional standards to immigration policy.”
  • Judge Bybee also rejected the Court’s demand for evidence of the efficacy of the policies the President’s order set forth, including its call for the government to present classified information in the proceeding, which could undermine national security decisions.

Judge Kozinski criticized the Court’s reliance on due process when so few foreign nationals affected by the President’s executive order had any due process rights under the law.

  • Judge Kozinski noted that the Ninth Circuit’s opinion rests solely on due process, despite the injunction’s application to millions of foreign nationals who “have no due process rights.”
  • “The overwhelming majority of the hundreds of millions of people covered by the order lack due process claims; only a tiny proportion have been accorded lawful status.”

Judge Kozinski also criticized the Court’s unwillingness to sever and restrain only those portions of the order it concluded were unconstitutional.

  • The Court has “an obligation to maintain as much of the order as is legal [and must] consider the severability of an executive order just as we would consider the severability of a statute.”
  • Maintaining in force those provisions of the President’s executive order the Court found constitutional “would have been easy,” and “would have respected the President’s prerogative to regulate immigration as delegated to him by” Congress.

Additionally, Judge Kozinski faulted the Court for misapplying the Establishment Clause.

  • Judge Kozinski faulted the Court for citing “numerous statements” from the 2016 election campaign, arguing that using such statements as evidence “sows judicial chaos.”
  • Judge Kozinski could not find a single case that “sweeps so widely in probing politicians for unconstitutional motives,” adding that “this path is strewn with danger.”
  • Judge Kozinski warned that the Court’s analysis would lead to the type of “judicial psychoanalysis” the Supreme Court has warned against, whereby judges seek to determine unstated motives behind legislation or executive orders.

Judge Bybee also faulted the Court’s misuse of the Establishment Clause.

  • “[W]e do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.”

Finally, Judge Bea faulted the Court for granting the States standing to file the case in the first instance.

  • “States may not sue the Federal Government to assert due process rights for themselves, nor for their residents—much less nonresident aliens—under the Fifth Amendment, because the States are not proper party plaintiffs.”