The Department of Justice claims that as an executive order, especially one regarding national security, the travel ban not only has all the power of a law, it also has a power no law has: it can’t be reviewed by the courts. The plenary authority behind it is unlimited. Neither its legality nor its constitutionality can be challenged.
When Justice argued these extraconstitutional powers some Americans were angry and amazed. Others said, “Well, that settles it.” Judges in Washington and Hawaii, as well as the Ninth Circuit, were dryly incredulous. But courts in Massachusetts and Virginia disagreed. And Congress and Trump are dead serious.
Both the Fourth and Ninth Circuits (federal appellate courts) found that Presidents must stay within the laws written by Congress - they have no inherent (extraconstitutional) power to make policy that affects anyone's rights, powers, privileges or immunities. Policies that affect these must be made by laws, and Presidents can only do what those laws say.
This is a long-needed move back towards what the Constitution says, away from a sequence of bad precedents ("caselaw drift") that incorrectly expanded Presidential powers. The following analysis shows the difference between what the Constitution says and what drifted precedents were saying.
The use of any power, right, privilege or immunity the people delegate in the Constitution is governed by it. In order to govern the use of these, their use against any person attaches the text's personhood rights, powers, privileges and immunities. Why?
By ordaining and establishing the Constitution by our preexisting personhood rights and powers, including sovereignty, we declare these inalienable: they're inborn in all people everywhere and can't be granted or removed. But because we consent to be governed, the text limits how far rights, powers, privileges and immunities must be honored here. United States government and law has most power over itself and its officers, less over an American person, and least of all over other governments - or their people, who never delegated any right or power to our government or consented to be governed by it.
We set ranges of the Constitution's jurisdiction in the text:
in time, we set dates of effectiveness for some portions of the text, using the date of ratification for all others
in space, Article I, section 8 establishes the Constitution's jurisdiction up to the borders of other nations. There can be exceptions.
The government is relying on an exception to territoriality for immigration: when a person applies for admission, the powers vested in the government by the Constitution attach. This is true - but not without bringing the rest of the text along with it! Because of the whole-text canon, the exception to territoriality works both ways.
Neither time nor space can create a situation in which only some of the text applies. This principle, simultaneity and universality, governs all law and agreements including constitutions.
All Constitutional text operates simultaneously and universally, even when an exception applies it outside the US (space), or prior to admission (time). For example, to become subject to the government's jurisdiction is to gain a right to have due-process and equal-protection rights honored here (Amendments V and XIV). They attach at the same time and in the same place.
Because the exercise of any United States power attaches the text's personhood rights to the person subjected to that exercise, no officer is immune for any official action taken outside the United States.
“Each House shall keep a journal … and … publish the same, except such parts as may in their judgment require secrecy; and the Yeas and Nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the journal.”
Article I, section 5
One reason for the Necessary and Proper clause is that we delegate to Congress power to keep secrets from the people. Secrecy requires approval by over 4/5 of each relevant House, the largest voting majority for any US action.
The Secrecy clause supports government by the people by placing a case-by-case burden on those who would keep secrets, guaranteeing secrecy will be minimal: Congress can't review everything, and with Amendment I prohibiting laws abridging speech and press freedoms and Amendment XIV protecting the public's right to know, it may not make blanket secrecy laws, including redelegating its secrecy power. Laws and treaties must be published and reviewable, and nowhere does the text grant secrecy power to POTUS. Executive orders are public and cannot claim a secrecy need. If a President wants to keep a secret from the public, s/he must ask Congress. Redelegating this power risks creating an executive fiefdom.
The only foreign policy matter here, a concern with some nations' vetting policies, must be evaluated and any needed treaty negotiation scheduled before affecting immigration rights. Immigration law isn’t about our relationships with foreign governments. It’s about the temporary and permanent composition of the United States population. The Constitution addresses both naturalization and admission.
The Article 1, section 8 list also includes:
“…establish a uniform rule of naturalization…”
The President may not make rules or policy on naturalization.
The notorious Promise of 1808 clause in Article I, Section 9 deferring the slavery question also confirms Congress’ power over entry:
“The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight…”
"Admission" could then include the forcible admission of captives under individual states’ authority; but there were already free states before the Constitution. Because of this difference we accepted states’ reservation of some admission powers but made it clear that United States admission legislation overarched these. The President is never mentioned in connection with admission.
For almost our first 100 years, the United States’ borders were open. When states passed laws limiting the immigration of poor people the courts rejected them. But by 1875 we could see the Pacific from the Capitol and the sense of a space too large ever to fill was ending. Eastern cities had become as crowded as any city in Europe as the gold rush led to the myth of “streets paved with gold” – in a land of confirmed freedom from monarchy and theocracy.
Empire was one response. Fear of sharing our power and resources was another. In 1889 Chae Chan Ping v United States brought presidential plenary power into caselaw, and did it in an immigration case. The uniform rule of naturalization no longer covered all matters of immigration. Presidential power over citizenship directly violated Article I, section 8 but Congress and the courts were no longer reading the text strictly. Presidential plenary power had crossed the border.
Congress took back its power over immigration in 1920’s National Origins Act but by that time was redelegating powers by statute. Sometimes to the states, sometimes to the executive branch. Congress redelegated its authority over immigration to the President in 1952’s Immigration and Nationality Act (often amended, most recently by 1996’s Illegal Immigration Reform and Immigrant Responsibility Act).
The United States can impact foreign nationals’ rights, powers, privileges and immunities in three ways:
Treaties must be approved by the Senate. Only Congress can declare war.
Article II, section 2 delegates specific foreign powers to the President:
By limiting reserved powers to the people and the states, Amendments IX and X also expressly prohibit any United States powers' contradicting the text (they’re not allowed to anyway). But the courts have let executive acts make the following policies, directly contradicting the expressed text which assigns them to Congress in so many words. And these policies impact people’s rights, powers, privileges and immunities.
The Constitution doesn’t define either border security or immigration as foreign affairs. The people specify immigration and border security to make doubly sure that these decisions will be made by Congress, not the President. Article I, section 8 of the Constitution begins, “Congress shall have power to …” and lists powers delegated to Congress:
“… (under “declare war”) …make rules regarding captures on land and water…”
The President may not make rules or policy regarding captures.
“…define and punish piracies and felonies committed on the high seas, and offenses against the law of nations…”
The President may not make rules or policy regarding felonies off the coast of the United States or offenses against the law of nations. Laws must keep our border zones strong against hostile entry and safe to transit for business, pleasure or governance. Foreign policy doesn’t begin at our borders but at other nations’ borders.
Congress’ counterterrorism authority extends to the high seas. Terrorism is a felony and an offense against the law of nations. Inside the United States both are still addressed by Congress. While border security can serve war objectives it’s specifically placed under Congress’ authority.
“…provide [by collecting taxes and revenues] for calling forth the militia to … repel invasions…”
The text assigns governance of militias to Congress and states. Militia powers are domestic: today they’re divided among local & state police, the National & Coast Guards and the Departments of Justice and Homeland Security. Repelling invasions is grouped with suppressing insurrections and law enforcement as a militia responsibility. Because militias rather than the military are charged with repelling invasions, it’s domestic border defense rather than waging war.
Article I, section 10 also allows a state to engage in war if actually invaded or in imminent danger, buying time for the President to call Congress into session to declare war. Contrary to the ever-expanding protective power claimed in the modern era, the President’s only lawful power in this situation is to convene Congress. Presidents have no reserved powers to activate by statute. Working in the aftermath of the Revolution, the Framers were hardly ignorant of the problems and dangers of war.
The combined effect of these clauses: While the President conducts foreign affairs repelling an invasion is not foreign policy, and the text delegates to Congress our temporary and permanent border security policies and rules on captures, invasions, and border felonies, including terrorism. And because domestic counterterrorism involves neither foreign governments nor the military, this kind of national security isn’t exempt from judicial scrutiny even if the other kinds can be (which is disputable).
Truth Walks Into a Courtroom...
Mootness & Vacatur in the Travel Ban Cases
The Constitution gives Presidents unilateral power to pardon or reprieve. It doesn’t bar self-pardon. But it does check and balance it.
Although United States law has elements in common with other countries’ laws, our law and government derive from none other – the constitutional democratic republic never existed before us. This makes it an error to use other countries’ laws to make assumptions about United States doctrine. Other doctrine can illuminate the text but we can’t start with nontextual doctrine then paste it onto the text.
And some scholars’ view that the Constitution vaguely suggests a ban on self-pardons ignores the fact that it’s not a vague document. The people have never been shy about being specific when we choose to be. There’s even a clause (in Article I, section 6) specifically protecting members of Congress from arrest while commuting to the Capitol!
Several clauses can affect self-dealing but preventing it is never their primary purpose. Requiring the Chief Justice, not the Vice President, to preside over a Presidential impeachment preserves separation of powers. The Foreign Emoluments clause prevents foreign powers’ gaining control over our government. The Domestic Emoluments clauses bar Presidents from dealing with Congress or states in business primarily to prevent the many problems it could cause in the legislative process (unbalancing states’ powers, confusion, extortion, etc). Keeping the legislative process functioning smoothly and lawfully is a higher priority than keeping one person from profiting unfairly by using his position. And the Compensation clauses protect against government offices being used for private gain for similar reasons.
Some argue incorrectly that self-pardon isn't lawful because "grant" can mean "gift" & you can't give yourself a gift. But in the Constitution "grant" refers to a government action. Just as in many states the governor or treasurer signs paychecks but the state is the actual payor, the office of the President of the United States actually grants pardons as a United States act of mercy. It's a discretionary action but it's not a private action by the individual occupying the office.
But isn't self-pardon gaining by using your office? That's a misleading use of the word gain. A pardon doesn't cause gain.
Committing a crime has one definite effect: it violates the law. Usually it has a second effect: the offender gains some objective in the real world. Some crimes have a third effect: someone else loses something in the real world. The justice system repairs the harm done to the law and remedies any real-world results as well as it can.
A United States pardon declares that United States law remains whole. If the law remains whole, some things at the time of the pardon change and others remain unchanged.
The important thing to remember is that a pardon isn't justice but mercy, a very different but equally important government function. And the United States must allow the same mercies to a President as to anyone else. Nothing less would be equal treatment under the law (Amendment XIV).
There's another reason to allow self-pardon: in case a spurious prosecution is brought in order to distract a President from the public’s business and throw the nation into chaos. At the time the Constitution was framed criminal prosecutions could be filed by victims the way civil cases are still filed today. It would be more than half a century before we established the office of United States prosecutor, with its requirement to have evidence before filing charges, and it’s still possible to use misleading evidence to keep a President running back and forth between court and the White House.
We check and balance the Presidential power to self-pardon in specific expressed ways, not by vague suggestion.
First, it has limits: it can only be used against United States criminal charges, not against state or civil charges, or impeachments. It can’t be used against administrative actions like injunctions.
Congress, for example, can seek an injunction to prevent a President from going to war. Although Article II, section 8 gives them sole power to declare war, World War II was our last declared war. Is this a loophole for Presidents? Not really. Should Congress ever actually seek an injunction no court would deny their claim that to begin military action against someone is functionally identical to declaring war. Injunction in general isn’t limited to Congress, either, and it’s a fast temporary legal remedy (the travel-ban injunction went into effect within 48 hours of filing).
Since a President can't pardon impeachments, administrative actions, or civil or state charges, these can be filed regarding the same underlying conduct. The underlying conduct is not pardoned because the executive isn't judging the case.
A pardon is an executive action, not a judicial one. It's an executive check on the judiciary in our system of checks and balances. Judges may not issue pardons. A pardon isn't an appellate procedure. It sets no precedent. It has no effect on the law. It can't be used to guide future legislation or the public's behavior.
Because pardoning isn't judging, pardoning yourself doesn't violate the rule against judging your own case.
Keeping oral argument within the 90 days would prevent any part of the case from potentially becoming moot before it could be heard. The Chief Justice sets the schedule for hearing cases. He had the opportunity to set oral argument before or after 90 days from the date the Court itself stayed the injunction.
Although a 1917 statute set the Supreme Court’s term as beginning the first Monday in October and ending in June, there is precedent for the Court both working into July (US v Nixon, 418 US 683, (1974) was decided on July 24, 1974) and starting in September (Citizens United v FEC, 558 US 310 (2010), was reargued on September 9, 2009). This means the Court had the opportunity to schedule the case during the 90-day period that wouldn’t potentially render any part of it moot. To schedule it before September 24 to keep it within the 90-day period was entirely up to the Court itself.
The Court scheduled it for October 10. As a result, the memorandum’s formula would expire part of the order prior to the case being heard. Under these circumstances it would be highly improper for the Court to moot any part of the case or to expunge either Circuit’s decision.
October 11 note: the Court has improperly mooted one case while expunging the 4th Circuit's decision, and only waits for the last part of the 9th's to become moot to do the same to it. Justice Sotomayor dissented.
Suddenly Version 3 opponents' ads are ignoring the statutory question, intimidated. The Brennan Center is even requiring attendees at a panel discussion of the case to sign an agreement to ask questions only on the religious issue, outrageous behavior for a watchdog organization.
The Court (and the media that covers it) call its abuse of mootness rules "a Court practice". That doesn't make it lawful. It can be challenged, especially when it plainly obstructs justice.
Because J.A. 1441-43 was issued before the Court even granted review the Court was of course aware of the formula prior to setting the date for argument. President Trump controlled both the order’s original expiration date and the memorandum’s formula for setting a new expiration date, but the Supreme Court controlled two factors in the formula: the date of the stay and the scheduling of the case.
Neither the State of Hawaii nor IRAP included the most pertinent arguments against mootness or vacatur in its responding brief. Not wanting to take the chance that they’ve been strategically saving them for the last round of briefs, we sent them to the parties & provided them here.
The Ninth Circuit took the first step in moving Executive power back towards the limits imposed on it in the Constitution: it limited the President's power over immigration to the power Congress redelegated to it in the applicable statute, 1952's Immigration and Nationality Act.
Not only does President Trump want to prevent the Supreme Court from addressing that ruling, he wants it to disappear. It cuts his power, although not nearly to the extent that the Constitution does, and a Circuit precedent has some value for future cases within that circuit even if overruled.
The way to make a ruling disappear is called vacatur, or expungement. If the case is held to be moot because of timing the Court can consider whether the decisions below should be left in place or vacated.
Of course, the first question is whether the case should be mooted in the first place.
A. In June, having been rebuffed by both the 4th and 9th Circuits, President Trump filed for certiorari on a potentially joined case. In his June 14 memorandum JA 1441-43, he set out a formula for determining the ban’s expiration dates. These would be based on when the Supreme Court stayed the injunction, with a 90-day active period beginning then for one section and a 120-day active period beginning then for the other.
Because it was June the President requested expedited review. On June 26, the Court granted review to the joined cases but did not expedite it. It granted the partial stay, which meant oral argument would have to be scheduled before September 24 to prevent possible mootness of one section, and before October 24 to prevent possible mootness of the other.
One problem with a corrupt era is that it excuses itself to itself. The current theory of "legal pragmatism" states that government's getting away with something once is all that's needed to make it OK. In fact, there are established government practices that have always been unethical. Some are even illegal.
It's particularly hard to police the Supreme Court. The Constitution allows that issues can be revisited in new cases, and that Congress can repass laws found unconstitutional (new cases can be brought against them). And of course bad behavior is impeachable (scheduling is administrative behavior).
B. President Trump surrendered his claim to vacatur with a voluntary forfeit “by the ordinary processes of appeal or certiorari” (US Bancorp Mortgage Co v Bonnel Mail Partnership, 513 US 18 (1994)). This is the proper claim against vacatur. It’s not the same as a plain voluntary forfeit, which requires all relevant action to be in the President’s control.
EO 13780 was effective March 16, 2017 for 90 and 120 days. But Presidential memorandum J.A. 1441-43 “explains that the effective date of each enjoined provision will be the date and time at which these ***injunctions are lifted or stayed with respect to that provision.” (respondents’ brief, internal quotation marks omitted).
On June 26 the Supreme Court granted review and a partial stay, which reset the clocks to September 26, 2017 and October 24, 2017 as part of the ordinary process of certiorari. The date of oral argument, October 10, 2017, was also set as part of the ordinary process of certiorari.
Any claim for vacatur regarding the portion of the order that expired on September 24 has been voluntarily forfeited by the ordinary processes of certiorari.
October 11 note: the ACLU did include this in its final brief (the 4th Circuit case). Neither respondent included the pertinent mootness argument. The ACLU's announcement of its intent to fight Version 3 adds the statutory issue to its case.
Do Presidents have power over the cases filed? No. See Help Lasso Runaway Executive Powers for the clauses that both express and imply departmental independence. Presidents have asserted a right to establish a favored priority during their administration (such as the “War on Drugs”) but even that stretches the text’s limits.
But a President can threaten to fire prosecutors, can’t he? The firing power question is currently under debate. How we fire Article II appointees isn’t expressed in the text but someone must be able to fire them, since the people can’t replace them by election. The President is their direct superior, isn’t he? No. The Attorney General is.
But isn’t the President the head of state? Not in that sense. He’s not a king. The United States is not owned by the President but by the people. A reciprocal-action doctrine that applies to all laws is what gives heads of businesses firing power even if it’s not expressed in an employee’s contract. What’s in Article II, section 2 is that the Senate must consent to these appointments. Reciprocal action strongly suggests their consent is also required to revoke an appointment.
Of course suggestion isn’t implication. An implication arises where two or more expressions plainly cross. Article III, section 1’s Good Behavior clause gives United States judges and justices lifetime tenure as long as they behave well but subjects them to impeachment otherwise. When the Advice and Consent and Good Behavior clauses are considered together an implication does arise: since we could have framed a corresponding Good Behavior clause for Article II appointees, the fact that we didn’t implies Advice and Consent already takes care of it. Preserving judicial independence requires the extra step of impeachment before removal.
A third clause comes into play. The President already uses his unilateral power to recommend measures to Congress, expressed in Article II, section 3, to recommend that the Senate consent to an appointment. He can use the same power to recommend that they consent to revoking one. That makes three clauses whose consideration together implies the Constitution’s procedure for firing executive appointees. Requiring the same branches that hire to fire retains the balance of powers. It’s a logical implication. The firing question has caused us headaches for generations. It’s time we accepted that the text resolves it by implication.
And this prevents a President from extorting prosecutors or even the Attorney General with the threat of unemployment for prosecuting him.
But the President can pardon himself from such a prosecution. And President Ford pardoned former President Nixon prior to charging, stopping any United States criminal investigation but the House’s. By resigning President Nixon had ended the House’s investigation for removal from office. Since impeachment can also result in disqualification (Article I, section 3) and their investigation began while he was in office they could have continued investigating to decide the disqualification question. Instead they chose to leave any future offices to the people, to let the country recover from Watergate. Nixon never ran for another office.
This brings us to the major checks on self-pardon: reelection and impeachment. If there’s a solid criminal case, the same evidence can be used to impeach. If the evidence can’t convince two-thirds of Congress it wouldn’t have been likely to convince a jury, either.
Grounds for impeaching a President include high crimes and misdemeanors. The fact that impeachment can even result from misdemeanors suggests that a high crime can probably be any United States felony. These are the same grounds as for criminal prosecution. Obstruction of justice is a felony, and since establishing justice is a Preambular purpose there’s no question that obstructing it is a high crime.
If a President issues any pardon to obstruct justice the pardon will stand but the President must be impeached for issuing it. This of course includes self-pardons!
The pardon power transfers when the next President takes the oath of office, even if a criminal trial or impeachment began before then. If the outgoing President had self-pardoned from an investigation or prosecution to obstruct justice, the former President will then be subject to prosecution for that obstruction of justice having lost that power.
We’re unlikely to reelect a President facing prosecution or impeachment. If we do, it clearly wasn’t a priority for us.
We can replace members of Congress but we can’t force a sitting Congress to impeach. The current increasingly rigid two-party system has led to an adversarial Congress in which neither “side” would impeach “their own” President. What’s worse, it’s set up adversarial rules that give the party with the most seats leadership of and majorities in committees like the House Judiciary Committee, which investigates potential impeachments.
This has also blocked our ability to use the danger of expulsion from Congress (Congress’ version of impeachment) to control members’ behavior. A majority in either house can give a party the equivalent of a self-pardoning power against expulsion. The Constitution is the law and violating it is the highest of high crimes, but last year Senators Grassley and McConnell violated the Constitution for many months with no fear of expulsion for this reason.
Although the Constitution places few limits on the kind of political system we can use, the Framers preferred a more open system to prevent problems like these (Washington didn’t run as a party member). If we’ve pulled impeachment’s teeth by allowing a two-party system to develop, that’s our own fault and our responsibility. We need to address it, and the sooner the better.
There are things Congress can do right now. We don't usually allow statutes that only affect one person, but there's only one office with the power of self-pardon. We should press Congress for a statute extending any statute of limitations for four years when a President is suspected of a United States offense, extendable for another four years if reelected. This would give a corrupt President pause and reassure the public that no offense would risk going unpunished.
Corruption statutes are extremely narrow and have a five-year statute of limitations. We should also remove this. For more on corruption and such related concepts as treason, see McDonnell v US: How It Works When It Works, or Not.
The Travel Ban: Immigration, and Authority Outside the US
Pardons and Corruption