Did Gorsuch Tip Hand On Travel Ban?

By Kimberly Strawbridge Robinson

President Donald Trump’s Supreme Court nominee said he wouldn’t give any indication on how he’d rule on the administration’s divisive travel ban during his confirmation hearings March 21. But then he did ... maybe.

Neil Gorsuch said that the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), would apply to the President’s “national security determinations.” That decision is often cited as the basis for granting the president wide-ranging authority in matters where Congress has ceded ground to the executive.

The Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States —often referred to as the Muslim ban by opponents—temporarily bars entry for nationals from certain Muslim-majority countries.

The executive order is necessary to prevent terrorist attacks, the administration said. “Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security,” the executive order said.

If Gorsuch meant that Youngstown would apply to any challenge to the executive order that could come before the Supreme Court, “the executive order must be afforded ‘the strongest presumption of constitutionality and the widest latitude of judicial interpretation,’” Josh Blackman, of the South Texas College of Law, Houston, said in a series of posts on his blog, quoting Youngstown. Immigration is often considered an area where Congress has recognized significant executive power.

But Youngstown has nothing to do with the constitutional questions at issue in the ongoing litigation over the executive order, Leah Litman, of the University of California, Irvine School of Law, Irvine, Calif., told Bloomberg BNA in an email March 21. Suits challenging the order raise claims that it discriminates based on religion.

Maximum Authority

In Youngstown, the Supreme Court rebuffed President Harry Truman’s seizure of steel mills in order to avoid a nationwide steel workers strike.

However, it may be Justice Robert Jackson’s concurring opinion in Youngstown that gets the most attention. That opinion established a three-part framework for reviewing a president’s actions.

“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” Jackson said.

“When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers,” he said.

But, when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate,” Jackson said.

Delegated Powers

“President Trump’s executive order does not wallow in Jackson’s third tier, nor does it linger in the so-called ‘zone of twilight,’” Blackman wrote of an earlier version of the executive order.

Through 18 U.S.C. §1182(f), “Congress has, with unequivocal language, delegated its Article I powers over immigration to the President,” Blackman said.

“A straightforward application of Justice Jackson’s framework” would “suggest that the courts should be deferential to the executive’s policy,” he said.

Looking for Motive

However, lower courts have generally ruled against the administration.

A federal district in Hawaii court recently halted the executive order, finding that the law violated the Establishment Clause’s prohibition against disfavoring certain religions, in Hawaii v. Trump, No. 17-00050, 2017 BL 80891 (D. Haw. Mar. 15, 2017).

In doing so, the court rejected the administration’s argument that the order was religiously neutral. The court instead looked to statements by then-candidate Trump and his “surrogates” to find that the executive order specifically targets Muslims.

The court, notably, didn’t cite Youngstown.

No Relevance

Litman said the court was right not to cite Youngstown.

Youngstown addresses only the distribution of power between Congress and the President; specifically, when the President can do something without Congressional authorization, or even in defiance of it,” Litman and Harvard professor Ian Samuel wrote on the Take Care blog.

“But as the Jackson Youngstown concurrence notes, if the government as ‘an undivided whole’ lacks the power to do something (like discriminate on the basis of religion, or race, or deprive people of liberty without due process), then its framework is just irrelevant,” Litman and Samuel wrote.

This “is precisely the nature of the claim” in challenges to the executive order, they said.

“Of what relevance is Youngstown to that? None,” they said.

Reading Between the Lines

Gorsuch may have suggested that he agrees with Blackman that Youngstown applies to challenges to the executive order.

After Gorsuch said that he wouldn’t give an indication of how he’d decide any such challenges that would reach the Supreme Court, Sen. Patrick Leahy (D-Vt.) changed course.

Some presidents have said that their national security determinations are unreviewable by the judiciary, Leahy said. “Do you disagree?” Leahy asked.

“As a judge I apply the law and the law here I think is Youngstown,” Gorsuch said.

Dodging the Question

Blackman told Bloomberg BNA in a March 21 email that Gorsuch didn’t say that Youngstown applied to challenges to the executive order.

“His discussion of Youngstown came in response to a question about reviewability,” Blackman said.

Gorsuch “dodged” all questions about executive order, he said.

What Did He Mean?

“I think it depends on what Judge Gorsuch was invoking Youngstown to say,” Litman told Bloomberg BNA March 21.

“If he was really just saying ‘courts have authority to review the legality of the President’s actions,’ then he’s not even invoking the Youngstown ‘framework'—i.e., how courts analyze a claim once they have concluded they can review the claim,” she said.

“If, however, he was invoking Youngstown to say this is how courts review a claim of presidential authority,” then he likely would apply Youngstown, she said.

“It’s just not clear from his responses what he meant to do,” Litman said.

She said, however, that Gorsuch went on to explain the Youngstown framework, “suggesting he is talking about how courts review the national security determinations once they say they can review them.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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