Ninth Circuit Trims Executive’s Expansive Claims to Be Able Pixie Dust Executive Orders

As you’ve surely heard, the Ninth Circuit handed President Trump a huge loss last night, refusing to overturn the nationwide stay on his Muslim ban. The per curium opinion is particularly strong in asserting that courts do have the ability to review Presidential orders, even those that pertain to national security.

But there’s another part of the opinion I’m particularly interested in, because if it is not reversed, it creates a very important new limit on what the President can do with EOs.

One of the problems Trump created for himself was targeting Green Card holders — lawful permanent residents. That’s because LPRs have long term relations with the country and are accorded constitutional protections, both within and outside of the US. So long as LPRs remain affected by the EO, it will be legally problematic, at least as it pertains to them.

The Administration tried to undo that damage by having the White House Counsel, Don McGahn, write guidance on how to interpret the EO, basically stopping its application to LPRs. Within the hearing, the attorney representing the states noted that the Administration’s stance toward LPRs had changed about five times. But it was clear the judges were also unimpressed with changes the WHCO, as opposed to the President, made to an EO.

Here’s where they rule that a WHCO can’t just change an EO with policy guidance.

The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).

In short, they’re arguing that to make the EO legal with respect to LPRs, the President himself is going to have to change the EO, not McGahn.

As most longtime readers know, I’m obsessed by the way that John Yoo pixie dusted EO 12333 by basically saying the President doesn’t have to modify an EO he is blowing off, by blowing it off he is simply modifying it. In a 2001 opinion (and a 2002 letter to the FISC) he wrote,

[T]here is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it.

George Bush used that ruling to be able to disseminate Stellar Wind data even though his EO said you could not disseminate SIGINT.

While this ruling does not directly affect that interpretation, it does suggest that only a President can alter an EO (or, alternately, he must first confirm that someone else modifying it has been delegated the authority to do so). So while it doesn’t entirely shut down the possibility of further pixie dusting, it does make such things harder. It does give people reason to challenge any such changes to an EO.

As I noted the other day, I don’t think John Yoo was so much complaining about Trump’s abuses, as complaining that the way he implemented his abuses might do permanent damage to claims of expansive Executive authority. Let’s hope Trump has already done so by refusing to formally alter an EO his WHCO recognized was vulnerable to legal challenge.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

27 replies
  1. Peterr says:

    So let me see if I have this right – the 9th circuit is saying “You have to admit in writing that you are pixie dusting before you do it, not afterwards”?

    We could call it invoking the Ziegler Rule, after Nixon’s old press secretary, famous for his oft-used line “The president’s earlier statement is no longer operative.”

    • emptywheel says:

      They’re not actually addressing pixie dusting at all. But they are saying that there needs to be some process by which an EO gets changed.

      I’ve been trying to think of a plaintiff who could challenge assassination as a pixie dusting of 12333, but there’s the problem of assassination = dead and the one time it might have worked, with Awlaki, OLC went through the motion of saying assassinating him wouldn’t amount to assassination. Tidy!

  2. SpacelifeForm says:

    The clustertrump – he is doing a great job.
    http://www.politico.com/story/2017/01/trump-immigration-congress-order-234392

    “These executive orders were very rushed and drafted by a very tight-knit group of individuals who did not run it by the people who have to execute the policy. And because that’s the case, they probably didn’t think of or care about how this would be executed in the real world,” said another congressional source familiar with the situation. “No one was given a heads-up and no one had a chance to weigh in on it.”
    Insiders told POLITICO that the botched roll-out of the immigration executive order was coordinated for the most part by White House policy director Stephen Miller, a former Sessions staffer, and Trump senior strategist Stephen Bannon.

  3. Don Bacon says:

    I don’t believe there was any huge loss for Trump. In fact Trump wins either way, if the EO holds or if it doesn’t. If the latter he will claim that he tried and deserves credit for that. We can also count on the FBI to set up yet another fake terrorist threat and put some retard away for life to bolster the strategy.

  4. earlofhuntingdon says:

    Yes, the court is saying the president’s lawyer’s interpretation of an EO doesn’t alter its terms, especially absent a showing that that opinion binds everyone who might rely on an EO as the basis for the legality of his or her action. Only the president can alter it if that is necessary to make it conform to superior law.

    I wonder whether Trumpian overreach – likely to be a daily occurrence – will make federal courts more willing to reach constitutional questions. Normally, they avoid them if they can decide a case based on other grounds, such as statute or case law.

  5. earlofhuntingdon says:

    Yea, the Donald always wants credit for trying hard, regardless of performance.  I don’t imagine that would have cut much mustard with Roy Cohn, Donald’s early mentor, or the made guys he was reputed to have spent time with.  Being such a textbook narcissist, however, means Donald always applies rules to himself that he would never allow others to benefit from.

    As you say, Bannon will make hay out of this regardless of however the courts rule, especially has this EO seems to have intentionally reached too far, in part, to unleash some of the chaos Bannon and Trump revel in,

  6. SpacelifeForm says:

    Note ‘apparently’.  Bet the clustertrump is not even aware of this eo that he will clueslessly sign.

     

    https://www.washingtonpost.com/world/national-security/white-house-draft-order-calls-for-review-on-use-of-cia-black-sites-overseas/2017/01/25/e4318970-e310-11e6-a547-5fb9411d332c_story.html

     

    An executive order apparently drafted by the Trump administration calls for a policy review that could authorize the CIA to reopen “black site” prisons overseas and potentially restart an interrogation program that was dismantled in 2009 after using methods widely condemned as torture.

  7. earlofhuntingdon says:

    This is also language – despite, or because, of how basic it is – we may welcome hearing again and again:

    There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that,even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”).  Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.”

  8. earlofhuntingdon says:

    I don’t imagine that John Yoo found this reference comforting:

    Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”).

    Or this:

    Nonetheless, “courts are not powerless to review the political branches’ actions” with respect to matters of national security.  To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war. [Citations omitted.]

    Bannon will ignore it, which means so will Donald.

    • Peterr says:

      I am particularly disgusted by the re-empergence of John Yoo on television as a Serious Expert about executive power. I’d much rather see him fighting to retain his tenure at Boalt Hall, if not his freedom before the Hague.

      Of course, if he’s trying to set himself up for a position in the Trump Administration, I’d actually encourage him to do so. The prospect of getting him to answer questions under oath about his past positions and activities would be quite something.

  9. SpacelifeForm says:

    Another clustertrump eo. If you thought gw was manipulated by cheney, well that was just a trial run on how to manipulate a president.

    When the eo attempts to suck local police in and they are fighting back, you know there is a big problem. Well, not the pres obviously.

    https://theintercept.com/2017/02/09/trump-administration-prepares-to-execute-vicious-executive-order-on-deportations/

    “When you put the three of them together, you just have the most fertile ground possible for racial profiling and terrorized immigrant communities who are going to be too frightened to cooperate with their local police,” she said.

    Altman is not alone in her grim assessment. In a legal breakdown following the signing of the order, immigration attorney David Leopold argued that Trump’s directive is a loaded gun with millions of immigrants in its crosshairs. “Trump’s plan is a blueprint to implement his campaign promises of mass deportation, and it puts in place the Deportation Force to carry out his plan,” Leopold wrote on Medium. “It’s clear that the executive orders were crafted by the most extreme anti-immigrant zealots in Trump’s orbit.”

    “I don’t want to say one order is more important than the other one,” Leopold told The Intercept, noting that the dramatic human impact of Trump’s travel ban is self-evident, not to mention the deep legal concerns raised by the order. But, he added, Trump’s order on internal immigration enforcement is “just as important” and has unfortunately slipped beneath the public’s radar.

    “I shudder to think about what’s going to happen once that’s implemented, and we’re already seeing signs,” Leopold said. “He has made, or I want to say Steve Bannon has made, every immigrant in this country a priority.”

    “That thing is vicious,” Leopold added. “It’s vicious.”

  10. earlofhuntingdon says:

    The Ninth Circuit was right to be cautious about the consistency with which agencies of the USG will interpret the rules coming out of this White House:

    This week, Canadian citizen Fadwa Alaoui said she was denied entry to the US after border officials asked probing questions about her Muslim faith and her views on Trump….on her way to Vermont for a day of shopping with two of her children and an adult cousin, she was stopped for four hours at the border [then refused entry].

    According to the Guardian, this Jordanian-born woman has been resident in Canada for twenty years and, like many Canadians living close to the border, frequently comes to the US to shop.  Not any more.  I wonder how this will affect the princes, princelings and accompanying family members who fly in to shop on Rodeo Drive and Park Avenue rather than the general stores in upstate Vermont.  Mr. Bannon may get the chaos his manichean outlook demands, but will it lead to the results he wants?

  11. SpaceLifeForm says:

    https://theintercept.com/2017/02/10/former-cia-analyst-sues-defense-department-to-vindicate-nsa-whistleblowers/

     

    ThinThread, TrailBlazer, GrandMaster, StellarWind

     

     

     

     

     

    Drake told The Intercept in an email that efforts to uncover the Pentagon inspector general’s ThinThread investigation were a large part of his defense. Since then, the Office of Special Counsel concluded last March that the Department of Justice may have destroyed evidence that might have helped exonerate him.

     

  12. RexFlex says:

    TOT:
    Frootwood.
    Founder’s is in Michigan’s 3rd, but Marcy from the 8th must know of this brewery’s prowess.
    If there was ever a beer to celebrate George Washington and the concept of I can not tell a lie. . .
    This cherry ale aged in maple syrup barrels is out-fcking-rageous.
    Here’s to enjoying the work of the Founders!

  13. Avattoir says:

    Assuming the Trump WH mate their lust for chaos with traditional R Let-It-Burn lawyering, I foresee a non-trivial chance they try to milk all bulls at once:

    1. seek appeal to the 9th sitting en banc from the 3-judge panel,

    2. constantly belching gas about a direct appeal to the SCOTUS, then

    3. next week a run at upending the board with a newly-worded EO.

  14. John Casper says:

    Don, you wrote, “I don’t believe there was any huge loss for Trump.”

    You’re correct with a lot of the 43% who support him. They won’t notice.

    Trump’s EO was a huge win for ISIS. It rewards their violence.
    Along with killing nine-children in Yemen, it increases the likelihood of further attacks.

    Representative government is inherently risky. Unlike you big-government lovers, the Constitution treasures individual liberty. They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

    Trump struck a blow against democratic capitalism, which requires that capital and labor be free to move.

    POTUS’ standing with the federal judiciary took an enormous hit.

  15. Watson says:

    OT: Snowden extradition?

    Snowden blew the whistle on security sector perps like Clapper, Comey, and Kallstrom who were conducting an unconstitutional total surveillance system.

    For Snowden to be the bad guy in that scenario, the outlaw snoopers have to be the good guys.

  16. Evangelista says:

     

    The U.S. Constitution has been, since the beginning of the 20th century at least, being pushed toward interpretation of being the commerce clause with peripheral dicta addenda, ‘dicta’ being ‘suggestion’, non-binding, ignorable in “legal” interpretation.  In keeping with this interpreting “law”, particularly the U.S. Code and state and other codes copied after it, bases on commercial law forms and interpretations.  In the course of this process Executive Order privilege (all allowances to the governing provided in the Constitution, for being provided in the Constitution, are privileges, allowed by the “We the People” of the Preamble to those People’s servants, the governing [who, for this hierarchy are without legal authority to ‘privilege’, or grant ‘rights’ to, the People, though in the commercial-law defined United States created by the noted interpretation, they pretend to]) has been interpreted a “tyrant” power, equivalent to tyrant powers granted to crisis-duration leaders in ‘Democratic Greece’ and Rome, e.g., to Caesar as Dictator, prior to his becoming Emperor.  The “tyrannic”, dictatorial and ultimately imperial power assigned to Executive Orders in the 20th, and to now in the early 21st, centuries has been gradually increased by gradual increase of authoritarian abuse, and allowed to increase by Congress and Courts, who, in the U.S. Constitutional system, are responsible to curb and control Executive exceedings.

    Trump entered the White House as an elected President.  This means as a member of the U.S. government, which means, for the Constitution, as a servant to the People, with obligations to serve the People as a public servant.  Prior to entering the White House Trump was not subject to the law of the Constitution, because he was a People, a layer-down of the Constitutional law provided to control the government servants of the People.  Having become a government servant, Trump is now, in that role, subject to the law of the Constitution, written for the People’s government servants.  Previously Trump was an executive in private enterprise, where the executives are not servants, but controllers, makers of decisions for, first, the corporation, not first for the people, the employees, of the corporation.

    Trump’s blast of Executive Orders, which orders are dictations, corporate executive managerial orders, indicates Trump (and his advisors) having difficulties transitioning from being an overseer executive to being a servant executive.

    The difference between the roles, and the requirement for government servants to remember they are servants is what differentiates republican government from corporate government, what differentiates a republic from a corporatist dictatorship, which in government is an imperial form of government.

    Trump, with his straightforward corporate executive style, has brought the problem of incremental government executive abusing of Constitutional framework controlled executive ordering and failing by the other branches to control the abusing, to a head.  Trump has initiated questioning, and for the questioning, legal (Judicial Branch) reviewing.

    John Yoo’s half-ass justificating of Executive Order Imperial Authority (actually Yoo’s flatly beside and around the Constitution justificating is full-ass, not half) needed to be challenged and carried to Congress and Judiciary both for reviewing when it was put forward.  That it was not is for public servants failing to carry out their duties as servants (and abusing their oaths to uphold the Constitution).  What respect for the Constitution required then, in lieu of Yoo blathering bullshit, is today, at last, thanks to Trump’s “lack of finesse”, finally getting the ball into play, getting the courts, at least, into action.

    It is about goddamn time.

    Thank you, Donald, it would never have happened in a Hillary Presidency.  The squawkers raising a storm today would only have coo’d on, and on, and on…

    The trick from here on forward will be to keep the ball(s) rolling.  To keep the Constitution’s provisions in reference, whether in regard to illegality of military operating within the United States (including Army Engineers illegally making military-perspective engineering decisions), or in regard to the illegality of presuming guilt to illegally ‘allow’ takings of properties on presumption, or illegally requiring the People to purchase product from private industries, or to control public services, and on and on, to rectify the mountain of abuses over a century of blatant corruption has heaped on the People to deprive them of “the blessings of Liberty” the Constitutional government of the United States was formed to safeguard for them.

     

     

    • Evangelista says:

       

      John Casper,

      Trump being an elected president is not really as “obvious” as you indicate yourself to believe.

      I will take responsibility for misleading you further than you may have been before you read, though, because I did not put quotes around “elected president”.  The quotes need(ed) to be there to indicate recognition that Jill Stein, through her challenging and, with those who supported her effort, coerecing recounts in two states (In Pennsylvania the legal dodging began immediately, so recountings done there were local initiative, only instigated, not coerced, by Stein’s effort), proofed that the countings of even the votes that were properly cast by under the current local systems properly registered voters were manipulated electronically or optically to disenfranchise recognized registered voters, so their votes would not be discard, not included in tallies exiting the counting machines.

      The kinds of manipulations proofed in the two states (and the amounts of manipulatings) averaged across all states where like equipment was employed and like manipulating probable indicated probable cause that enough properly franchised voters were probably disenfranchised to moot the 2016 U.S. Presidential Election.  That is, the election was manipulated to a level of vote exclusion and falsification sufficient to moot the entire voting exercise across all states of the United States.  The hasty implementings of ‘legal’ assaults to interdict continuation of the recountings, through demanded court orders, from both parties immediately upon first indications of manipulatings in the two states proofed, one, that both parties had been aware and active participants in the electronic and optical manipulatings evidenced, and, two, that the manipulatings evidenced were ‘tip-of-the-iceberg;  that both parties recognized that further recounting would evidence wide enough spread of election manipulation that the results of the 2016 election would be sufficiently marred to render the election void or voidable, leaving the United States with no recognizably elected head of state, with need for re-run of the whole election process, from opening polls through voting and counting of votes, and with both political parties, and the entirety of the political establishment, evidenced criminal and criminally culpable.

      Thus, both parties filed legal motions to stop the recounting and halt further questioning of the election results.  In other words, both parties agreed to accept the flawed results of what was, in fact, a joust between vote-count manipulators on both sides.  Trump won the vote-count fraud game, both political parties agreeing that his side out-gamed the Hillary side.  Or that the Electoral College enabled Trumpp to out-game in the manipulating.

      Jill Stein proofed that the 2016 U.S. Presidential election elected no president.  The victory was decided by the manipulation cheating game and was assigned by the cheaters agreeing to accept the winner of the cheating game for a “winner in election”.  To avoid a do-over that, to legalize the election results was needed.

      The election was no more screwed up and manipulated than most of everything else in the gangster-state Commercial United States that has been imposed on the People of the United States by the commercial aristocrats who control the current corporate-state. A state where, as the current airing of the corporate-state’s ‘assets forfeiture’ permissions is presently publicizing, the policing organizations of the state and states are more criminal and are greater theives than the free-lance thieves, in addition to being authoritarian, military and murderers.

      I did not miss that Trump and Co. decided to not file the hopeless appeal Trump emptily threatened, but I did write before Trump &Co. announced their making that decision.

      In addition, where I am the Trump administration’s immigration executive order is not the only executive order that administration has issued, or that oversteps and requires the oversight challenging that the courts and corrupt or cowardly judges of the judiciary branch have been derelict, and in violation of their oaths, for not providing through at least the last fifty years.

       

      • John Casper says:

        Evangelista, your final sentence is 60-words. Are you allergic to periods?

        Within that 60-words you wrote, “…where I am the Trump administration’s immigration executive order….”

        Please explain where you are “…the Trump administration’s immigration executive order…” and where you are not.

         

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