One must give credit to the Trump administration for having persuaded American leftists to venerate the Constitution. We all remember when Pres. Barack Obama decided to use his supposed executive authority to change immigration law… because, he said, Congress had failed to act. Even those of us who are not lawyers understand that the Constitution does not offer the president a right to do as he pleases, by default, when Congress fails to do what he wants.
As for the 9th Circuit Court's decision regarding the Trump immigration order, one gives more credence to legal scholars who tend to lean left. Those who lean right might be taxed with bias. Those who lean left and who find fault with the ruling can be expected to be more objective.
Alan Dershowitz knows the law and is notably (and proudly) liberal. One must say that Dershowitz is liberal in the old sense of the word, but he has consistently offered judicious opinions, calling them as he sees them-- and respecting those who think differently.
He believes that the court overreached and that the Trump administration will have a good chance to prevail before the Supreme Court.
The reason is simple:
The Circuit Court decision, despite its unanimity, is questionable on the law. It extends constitutional protections to foreigners who have never been in the U.S., have no connections to our country, and have no constitutional right to come here.
As for the question of who has standing to bring the case, a family with a visa would have standing while a family of foreigners would not:
Contrast that family with one already here on an academic visa or with a green card, who are deported or refused re-entry after a trip back to their home country.
They would have standing and a plausible claim that their exclusion violated their constitutional rights. But the 9th Circuit refused to distinguish these cases, ruling instead that the executive order was probably unconstitutional as to all who seek to enter the U.S. from any of the seven countries originally designated by the Obama administration.
Dershowitz recommended that the administration reframe the order, making clear that it only applied to people who did not have green cards or other valid visas. If the situation is dire and we need to stop certain people from entering the country, taking the case to the Supreme Court will simply take too much time.
Also Jeffrey Toobin in the New Yorker weighs in against the 9th Circuit. Again, he was not writing in a Trumpophile publication and Toobin is anything but a conservative writer.
Toobin finds the court decision to be questionable on several grounds. Among them, on the ground of “standing.” The Court granted the states of Washington and Minnesota “standing” because their universities would have been harmed by the Trump administration order.
What injury did the states of Washington and Minnesota suffer? According to the Ninth Circuit, “the states allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries.” The faculty members and students themselves would surely have standing to sue; most of the other cases percolating through the courts involve challenges by individuals whose travel has been affected by the order. But the harm to the universities is pretty attenuated.
Second, Trump claimed that his executive order was based on his power under a federal law granting the president broad power to make close the borders to certain classes of people.
Toobin notes that:
What does the Ninth Circuit say about this provision? Nothing. Remarkably, the opinion does not quote or even cite the relevant law.
True enough, Toobin continues, the president’s order must pass constitutional muster. And yet, the circuit court does not even address the issue:
To be sure, the President’s exercise of his authority under this law must be consistent with the Constitution. But the words of the statute must be taken seriously as well. They amount to a broad grant of power in an area (national security) where the courts have traditionally given the President a relatively free hand. The Ninth Circuit should have engaged with this statutory text and explored its relation to the commands of the Constitution.
Those who were cheering the court’s decision as a victory for the Constitution apparently missed this point completely.