The DOJ's Executively Under-Privileged Claim in the 9th Circuit

Yesterday afternoon, the Ninth Circuit Court of Appeals heard oral arguments in Washington v. Trump, (17-35105), considering whether to stay a temporary injunction halting the President's controversial executive order curtailing immigration from seven countries known to harbor substantial terrorist threats to our nation.

Plaintiffs, the states of Washington and Minnesota, contended that the order is unlawful and "unconstitutional" because it leaves their university students in limbo, separates families within their borders, and is allegedly in violation of the Establishment Clause; the federal governmentcounteredthat the states do not have standing to sue on behalf of either their citizens or foreign nationals, and also that no irreparable harm will result from the issuance of a stay. However, in light of the importance of our immigration policy to ensuring our national security, the aspects of the case the DOJ declined to mention may turn out to be the most vital.

No Mention of Reynolds Endangers National Security

Throughout the hearing, the panel repeatedly questioned Justice Department lawyer August Flentje about potential limitations of judicial review of the imperiled order. At one point, when he briefly invoked the reservation of power to the President and the difficulty of assessing the validity of a critical security decision, presiding judge Michelle Friedland asked outright: "Are you arguing, then, that the President's decision in that regard is unreviewable?" (12:51-12:56). Flentje agreed after a long pause, but immediately reverted to the question of standing and entirely ignored the sensitive nature of our ongoing fight against international terror. This choice could cost the government heavily in subsequent phases of this case, as Flentje effectively waived any privilege the U.S. could otherwise claim during discovery.

Under United States v. Reynolds, 345 U.S. 1 (1953), the federal government retains the privilege - and the obligation - to protect the public's safety by withholding documents containing classified or confidential material, such as military intelligence relating to the activities of extremist groups within the affected nations. The primacy of the privilege is exemplified in the text of Reynolds itself- "Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake" -and specific invocations of its protections have always been treated deferentially by the courts. As the Supreme Court wrote per Justice Field in the wake of the Civil War, "It may be stated as a general principle that public policy forbids the maintenance of any suit in a court of justice the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential and respecting which it will not allow the confidence to be violated." Totten v. United States, 92 U.S. 105, 107 (1875). One hundred and twenty-six years later, the D.C. Circuit recognized the validity of this "privilege and prerogative of the Executive," writing further that courts cannot "compel a breach in the security which that branch is charged to protect." National Council of Resistance of Iran v. Dep't of State, 21 F.3d. 192 (2001), seeGlobal Relief Foundation v. O'Neill, 315 F.3d 748 (7th Cir. 2002) and People's Mojahedin Organization of Iran v. Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003). In Jabara v. Kelly, it was similarly concluded that "[i]n the case of claims of military or state secrets' privilege, however, the superiority of well-informed advocacy becomes less justifiable in view of the substantial risk of unauthorized disclosure of privileged information." 75 F.R.D. 475 (E.D.Mich. 1977). As the Fourth Circuit recognized in 1972, "The courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." United States v. Marchetti, 466 F.2d 1309, 1318, cert.deniedat 409 U.S. 1063 (1972), see also Black v. United States, 62 F.3d 1115 (8th Cir. 1995), Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236 (4th Cir. 1985). The court in Heine v. Raus espoused an expansive view of the privilege, holding that "if the two interests cannot be reconciled, the interest of the individual litigant must give way to the government's privilege against disclosure of its secrets of state." 399 F.2d 785, 791 (4th Cir., 1968). SeeAlfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975), Cresmer v. United States, 9 F.R.D. 203 (1949) and Zuckerbraun v. General Dynamics Corp., 935 F.2d 544 (2nd Cir. 1991). Lastly, in Halkin v. Helms, the D.C. Circuit acknowledged the heightened importance of the privilege in the modern era:

"It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate." 598 F.2d 1, at 8 (1978).

In this case, however, the DOJ opted not to assert the rights contained inReynolds, and therefore may be compelled to disclose any relevant intelligence during discovery or risk the automatic loss of this lawsuit. Either alternative could place the government at a disadvantage when promulgating new immigration regulations and severely jeopardize our collective security in the interim.

The Dormant Naturalization Clause

Additionally, even though Flentje emphasized Washington's lack of standing in the instant suit, he did not challenge its attempt to interfere with U.S. foreign policy. The Constitution explicitly reserves the power "To establish an uniform Rule of Naturalization" to the federal government in Article I, Section 8, an assignment of authority which plainly indicates that only the United States can control its rules pertaining to immigration. This is made clear in Edwards v. California, 314 U.S. 160 (1941), in which the respondent unconstitutionally attempted to curb migration from the Midwest by penalizing those aiding indigent travelers, and in State v. Steamship "Constitution," 42 Cal. 578 (1872), in which a California statute that sought to deny admission to international immigrants was struck down as infringing on the sole right of the U.S. government to regulate entry to this nation.

It is a long-standing principle that certain rights enumerated as belonging to the federal government in the Constitution cannot be usurped by the several states. Our national jurisprudence concerning the Dormant Commerce Clause best illustrates this. In Quill Corp. v. North Dakota, the Supreme Court declared: "The [Commerce] Clause, in Justice Stone's own phrasing, 'by its own force' prohibits certain state actions that interfere with interstate commerce. South Carolina State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177, 185 (1938)." 504 U.S. 298 (1992), see also Tyler Pipe Industries v. Washington State Dept. of Revenue, 438 U.S. 232 (1987), Nat'l Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753 (1967), Toomer v. Witsell, 334 U. S. 385 (1948). In this case, Washington contends that it sues on its own behalf and to protect its own interests; however, it is still unlawfully arrogating the functions of the United States government under Brimmer v. Rebman, where it was held that "a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to all the people of the States, including the people of the State enacting such statute." 138 U. S. 78 (1891). So long as a state possesses the intent to appropriate the plenary powers of the federal authorities, "that legislative effort is clearly impermissible under the Commerce Clause of the Constitution." Philadelphia v. New Jersey, 437 U. S. 618 (1978); Leloup v. Port of Mobile, 127 U. S. 640, 648 (1888); Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662 (1981); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10 (1928). Finally, as the Court once asserted per Chief Justice Marshall:

"It has been observed that the powers remaining with the states may be so exercised as to come in conflict with those vested in Congress. When this happens, that which is not supreme must yield to that which is supreme. This great and universal truth is inseparable from the nature of things, and the Constitution has applied it to the often interfering powers of the general and state governments, as a vital principle of perpetual operation. It results necessarily from this principle that the... power of the states must have some limits. It cannot reach and restrain the action of the national government within its proper sphere." Brown v. Maryland, 12 Wheat. 419 (1827).

Conclusion

A decision in this case is expected by the end of the week, and the lawsuit will proceed regardless of whether the emergency stay is granted or denied. However, the hearing yesterday provided us with a revealing glimpse of both the Justice Department's contentions and the important concepts left unmentioned - which could effectively shape the future of this litigation over the next weeks.