The problem with the Ninth Circuit’s decision striking down Trump’s Muslim ban

This isn’t how you rein in a rogue president.

CREDIT: AP Photo/Matt Dunham
CREDIT: AP Photo/Matt Dunham

There’s a very difficult balancing act at the heart of State of Hawaii v. Trump, one of several decisions challenging Donald Trump’s Muslim ban.

On the one hand, presidents often need to make difficult national security decisions with imperfect information. But since presidents also have access to more information than anyone else in government, courts defer to the executive branch in national security cases because judges are more likely to make the wrong call if they second-guess a more informed president.

On the other hand, Donald Trump is an ex-game show host who knows very little and has even less desire to learn more.

For this reason, the ideal result in the Muslim ban cases is a decision that ends Trump’s unconstitutional Muslim ban, while still giving future presidents the flexibility they need to act in the best interests of the nation.

Most of the court decisions ruling against Trump’s ban have threaded this difficult needle.

As the United States Court of Appeals for the Fourth Circuit laid out, Trump’s ban is unconstitutional because it was enacted specifically to target members of a particular faith. We know this because Trump spent more than a year bragging about his plans to implement a Muslim ban. And targeting an individual because of their faith is unconstitutional.


Future presidents, however, are unlikely to so carelessly brag about their intention to violate the Constitution. Thus, a decision focusing on Trump’s expressed intentions establishes that the ban is illegal without limiting future presidents’ actions.

On Monday, the Ninth Circuit went a different route in its Hawaii decision, holding that the Muslim ban violates various provisions of federal immigration law — without considering whether it violates the Constitution. Some of the Ninth Circuit’s arguments are fairly persuasive. Others much less so. Still others are convincing but unlikely to matter in the long term, because they simply require the Trump administration to jump through a few procedural hoops before reinstating the Muslim ban.

There’s a defensible reason for the Ninth Circuit to go this statutory route rather than declaring the ban unconstitutional. The Supreme Court has warned that “courts should be extremely careful not to issue unnecessary constitutional rulings.” Since this case is destined to be decided by the Supreme Court — probably very soon — and since the Fourth Circuit already ruled on constitutional grounds, the Ninth Circuit’s statutory decision offers the justices an alternative route they can use to stop the ban even if they think it passes constitutional muster.

But the Ninth Circuit’s opinion is also much too clever. It overreads some parts of the law, and does not explain crucial parts of its reasoning. Most significantly, parts of the Hawaii opinion claim too much power for the judiciary, potentially subjecting future presidents to unnecessary court orders even when those presidents act in the best interests of the nation.

The most significant aspect of the Hawaii opinion is probably a section holding that Trump violated an anti-discrimination ban when he issued the most recent version of the Muslim ban, which bans most citizens of six foreign nations from entering the United States.


Federal law provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence,” and the Ninth Circuit concludes that this prevents Trump from denying entry to residents of these six nations.

It’s a decent argument, but not a slam dunk. As the Trump administration argues, the law draws a distinction between “issuance of immigrant visas” and actually allowing an immigrant to enter the nation. Additionally, not all foreign nationals who enter the United States lawful do so as immigrants or on immigrant visas. So even if this ban on discrimination applies to the Muslim ban, its scope could be limited.

Another section of the opinion accuses Trump of failing to provide an adequate justification for the ban. The section of law that Trump relies on provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

According to the Ninth Circuit, this language imposes several obligations on the president. It “requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.” Trump, according to the Ninth Circuit failed to make this finding.

That may very well be true, but so what? Trump could simply reissue his executive order with a new sentence reading “I’m the president, and I find that the entry of the aliens barred by this order would be detrimental to the interests of the United States.”


But the Ninth Circuit also indicates that this would not be enough. Instead, it goes on at length about how the justifications Trump did offer for his order are inadequate. Referring to Trump’s claim that the order is justified by national security concerns, for example, the court holds that “national security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under” the relevant provision of law.

But it is far from clear how that conclusion follows from the statutory text that the Ninth Circuit relies upon. Nor is it clear what gives the judiciary the power to comb through the president’s explanation for an executive order and deem it unacceptable. The same reasoning the Ninth Circuit uses to restrict a rogue president today could easily be used to hobble a much more thoughtful and serious president tomorrow.

Again, the point here isn’t that the Ninth Circuit’s reached the wrong result, or that Trump’s Muslim ban is legal. To the contrary, the Fourth Circuit’s constitutional reasoning provides a very strong legal argument against the ban.

Rather, the point is that a national emergency can lead to some very bad law. Judges can develop tunnel vision. They can be so eager to stave off the current threat that they forget that their decisions can have very bad implications for future cases.

In the national security context, this way of reacting to an emergency often leads to the courts enabling terrible practices. It explains why the Supreme Court allowed Japanese internment camps. Or why it permitted overbearing censorship during World War I.

Today, by contrast, the national emergency is Donald Trump, and the danger Trump presents for the courts cuts in two directions. A decision upholding the Muslim ban would echo Korematsu, the Japanese internment case. But a decision that strikes it down in a less-than-thoughtful manner risks tying up national security matters that must be resolved quickly in plodding litigation.

As the Fourth Circuit has shown, it is possible to meet the challenge of an incompetent president without fundamentally altering the presidency’s ability to respond to real crises. The Supreme Court would do well to follow that example.