At the heart of the legal battle over the President’s Executive Order banning refugees from Syria and individuals from seven predominantly muslim nations is a claim that his authority to do so should not be subject to judicial review. If his order on its face states that he has found their exclusion to be in the interests of the United States that should end the matter, at least according to DOJ lawyers in the recent State of Washington litigation.
There is a lot that is wrong in this position including its failure to recognize that the powers of a President NOT subject to judicial review are very limited and have almost never included a situation where he orders an Agency like the Department of Homeland Security to exclude aliens. The Administrative Procedures Act gives the courts wide latitude to review Agency actions, a principle rooted in the fact that Agencies are not creations of plenary executive power.
Nonetheless, to bolster a very weak case, the Government relied heavily in their argument in Washington on Knauff v. Shaughnessy, a 1950 Supreme Court case, where the Court upheld the exclusion of a German woman who had married an American soldier on security grounds. The case is considered long discredited (see Louis Henkin, The President and International Law, 80 AJIL 930, 937 n.20) but is trotted out by the DOJ whenever it tries to defend some unilateral exercise of power by the President. The Government doubles down on Knauff in their motion for an emergency stay to the Ninth Circuit.
Paradoxically the Government relies on Knauff while also relying on Kleindienst v. Mandel although the latter case can be said to have rendered the former no longer good law. The Government likes the Mandel case because it states that the standard of review of a Presidential order in immigration cases is very limited – to simply what the DOJ lawyer in the Washington hearing called “facial” validity. But that is at least some kind of review and Knauff stood for the proposition that the President’s power was in this area was, in essence, not subject to review at all!
It is worthwhile then to consider the following excerpt from the dissent in that case (Knauff v. Shaughnessy) by Justice Robert Jackson (whom the DOJ also quotes in another case in their brief):
Security is like liberty, in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security, the police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected. Cf. In re Oliver, 333 U. S. 257, 333 U. S. 268.
I am sure the officials here have acted from a sense of duty, with full belief in their lawful power, and no doubt upon information which, if it stood the test of trial, would justify the order of exclusion. But not even they know whether it would stand this test. And anyway, as I have said before, personal confidence in the officials involved does not excuse a judge for sanctioning a procedure that is dangerously wrong in principle. Dissent in Bowles v. United States, 319 U. S. 33, 319 U. S. 37.
Congress will have to use more explicit language than any yet cited before I will agree that it has authorized an administrative officer to break up the family of an American citizen or force him to keep his wife by becoming an exile. Likewise, it will have to be much more explicit before I can agree that it authorized a finding of serious misconduct against the wife of an American citizen without notice of charges, evidence of guilt and a chance to meet it.
I should direct the Attorney General either to produce his evidence justifying exclusion or to admit Mrs. Knauff to the country.
Now this is where it gets interesting: J. Jackson two years after this case wrote his most noted opinion in the Steel Seizure case where he outlined what has become the modern test of the legitimacy of presidential power. He was clearly influenced by what he learned in the earlier Knauff case and pointed out that where a President acts alone without congressional support his power it at its lowest ebb. So if the Government wants to take a Knauff based approach to the current Executive Order it is in fact flying in the face of the Steel Seizure approach. Yet the Government also argues that it has the support of a statute – Immigration and Nationality Act! Well, if that is the case then it cannot rely on Knauff! And then it is back at least in the land of Mandel where it must allow courts some minimal right of review and thus it is required to provide some basis for its claim that the order is facially valid (i.e., that it meets the requirement of the INA that the Order is rooted in a valid concern for US interests.)
Of course, I think the APA and other approaches based on due process should be applied and I think the 9th circuit may agree given the blanket nature of the Order, the utter failure to provide any support for the ban and the highly suspicious statements about religion made by the President.